Felsztynski v Victorian WorkCover Authority
[2022] VSC 257
•23 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2020 04665
| BOZENA FELSZTYNSKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 April 2022 |
DATE OF JUDGMENT: | 23 May 2022 |
CASE MAY BE CITED AS: | Felsztynski v Victorian WorkCover Authority |
MEDIUM NEUTRAL CITATION: | [2022] VSC 257 |
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JUDICIAL REVIEW AND APPEAL – Administrative review – Workers compensation – Serious injury - Common law proceeding for damages – Failure to commence proceeding within prescribed time periods – Where application made for Authority’s consent to commence proceedings out of time – Whether triggering event is commencement of proceedings or making of application for consent - Workplace Injury Rehabilitation and Compensation Act 2013 s 333, s 337 – Wilson v Nattrass (1995) 21 MVR 41 – Swannell v Farmer [1999] 1 VR 299 – Victoria v Robertson (2000) 1 VR 465 – Key v Payne [2004] 10 VR 162 – Primary Health Care v Giakalis (2013) 38 VR 165 – Taylor v Owners Strata Plan No 11564 (2014) 253 CLR 531 – Quinlan v Catholic Regional College Sydenham [2015] VSC 463 – NSWALC v Minister Administering Crown Lands Act (2016) 260 CLR 232 - Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (2017) 55 VR 367 – R v A2 (2019) 269 CLR 507 – Medical Board of Australia v Sami [2022] VSC 90.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Ruskin QC with Ms J Frederico | Slater & Gordon |
| For the Defendant | Mr M Fleming QC with Ms F Spencer | MinterEllison |
HER HONOUR:
Introduction
On 20 February 2015, Ms Felsztynski sustained an injury in the course of her employment with Spotless Services Pty Ltd. The impairment arising from this injury was subsequently assessed and determined to be a deemed serious injury pursuant to s 330(1)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’), entitling Ms Felsztynski to commence proceedings for common law damages.
Section 333 of the Act sets out a mandatory timetable in which steps must be taken by both the injured worker and the Victorian WorkCover Authority (‘the Authority’) prior to the commencement of common law proceedings. If certain steps are not taken within the prescribed periods there are consequences for the party who fails to comply.
One such requirement is that the damages proceedings must not be commenced more than 51 days after the worker’s statutory counter offer is made.[1] If a writ is issued after that day, the proceedings are invalid unless, on the application of the worker, the Authority consents to the late commencement of the proceedings pursuant to s 337(2) of the Act.
[1]Section 333(e)(i).
Ms Felsztynski’s writ was issued on the 52nd day after her statutory counter offer was made, rendering it invalid.
There are two paragraphs under s 337(2) that set out criteria the Authority is to consider when a worker seeks such consent. Under s 337(2)(a), the Authority may consent if it is satisfied that the defence will not be prejudiced by the late commencement of proceedings. Under s 337(2)(b), the Authority may consent if it is satisfied that the failure to comply with s 333 was not due to any fault or omission of the worker or the worker’s legal representative (‘the fault or omission test’).
This appeal turns on whether, relative to the making of the statutory counter offer, the triggering event under s 337(2) was the commencement of proceedings as submitted by Ms Felsztynski, or alternatively, the making of the application for consent as submitted by the Authority.
Although Ms Felsztynski issued proceedings one day out of time, she was not informed of this error until just over seven months later when the defendant solicitors asserted that the writ was invalid. A week later, Ms Felsztynski’s solicitors sought the Authority’s consent for the late commencement of proceedings under s 337(2)(a) of the Act.
The Authority considered Ms Felsztynski’s application under s 337(2)(b). It stated that in the absence of any material from Ms Felsztynski’s solicitors to explain whether there was any fault or omission on her behalf, it surmised that there was nothing to be put that would have been helpful to her or her legal representatives and therefore denied consent to the commencement of proceedings outside the prescribed time limit.
Ms Felsztynski submitted that the determination under s 337(2)(b) was an error of law and that her application should have been considered under s 337(2)(a), under which the Authority was only required to consider if the defence would be prejudiced by the delay.
For the reasons that follow, I am satisfied that the Authority should have considered Ms Felsztynski’s application under s 337(2)(a) and that it erred in its consideration of the application. I therefore quash the decision of the Authority and remit it for reconsideration in compliance with the Act.
Relevant legislation
The legislation relevant to this application is as follows:
333 Conference before proceedings commence
The worker must not commence proceedings in accordance with this Division, other than an application under section 335(2)(d) or the commencement of proceedings with the consent of the Authority under section 337, unless—
(a)the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and
(b)the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and
(c)if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and
(d)the Authority or self-insurer does not accept that statutory counter offer within 21 days after it is made; and
(e) the proceedings are commenced—
(i)not earlier than 21 days, and not more than 51 days, after the statutory counter offer is made; or
(ii)if a statutory counter offer is deemed to have been made under section 334(2), not more than 30 days after the day on which the statutory counter offer is deemed to have been made.
The predecessor to this section was originally s 135A(2DE) of the Accident Compensation Act1985 (‘the ACA’). An equivalent provision was also contained in s 134AB(12) of the ACA to cover injuries suffered on or after 20 October 1999.
The other relevant section of the Act is:
337 Authority may consent to bringing of proceedings
(1) If, on the application of a worker, the Authority is satisfied that—
(a)the worker is unable to commence proceedings in accordance with this Division because of the operation of section 335(2)(d); and
(b)the failure to comply with section 335(2)(d) was not due to any fault or omission of the worker or the worker’s legal representative—
the Authority may consent to the bringing of an application under section 335(2)(d).
(2)If the Authority is satisfied that a worker is unable to commence proceedings in accordance with this Division because of the operation of section 333, on the application of the worker, the Authority may consent to the commencement of proceedings—
(a) either—
(i)earlier than 21 days after the date the statutory counter offer is made; or
(ii)later than 51 days, but no later than 81 days, after that date—
if the Authority is satisfied that the defence of the proceedings will not be prejudiced; or
(b)later than 81 days after the date the statutory counter offer is made if the Authority is satisfied that the failure to comply with section 333 was not due to any fault or omission of the worker or the worker’s legal representative.
The ACA contained the predecessor to s 337(2). The Accident Compensation (Miscellaneous Amendment) Act 1997[2] introduced s 135A(6A) which applied to injuries suffered prior to 12 November 1997.
[2]By the Accident Compensation (Miscellaneous Amendment) Act 1997 (Vic).
For injuries suffered on or after 20 October 1999, the equivalent section was initially contained in s 134AB(20) of the ACA which provided the following:
134AB Actions for damages
If, on the application of a worker, the Authority is satisfied that—
(a)the worker is unable to commence proceedings in accordance with this section because of the operation of subsection (12) … ; and
(b) the failure to comply with subsection (12) … was not due to any fault or omission of the worker or the worker’s legal representative—
the Authority may consent to the commencement of the proceedings …
In 2001, the Accident Compensation (Amendment) Act 2001 (‘the amending Act’) introduced s 134AB(20A) into the ACA through amending clause 22. This clause was as follows:
22 Widening of ability of the Authority to consent to commencement of action for damages for post 20/10/99 injuries out of time
If the Authority is satisfied that a worker is unable to commence proceedings in accordance with this section because of the operation of subsection (12), on the application of the worker the Authority may consent to the commencement of proceedings—
(a) either—
(i) earlier than 21 days after the date the counter offer is made; or
(ii) later than 51 days, but no later than 81 days, after that date—
if the Authority is satisfied that the defence of the proceedings will not be prejudiced; or
(b) later than 81 days after the date the counter offer is made if the Authority is satisfied that the failure to comply with subsection (12) was not due to any fault or omission of the worker or the worker’s legal representative.
The amending Act also introduced an equivalent provision in s 135A(6B) for injuries suffered prior to 12 November 1997.
The wording contained in s 134AB(20A) and s 135A(6B) of the ACA are the same as that now in s 337(2) of the Act save for the reference to a failure to comply with the relevant equivalent subsections, being s 134AB(12) in the ACA and s 333(e) in the Act.
Background to the application
On 10 March 2015, Ms Felsztynski made a claim for compensation under the Act which was accepted on 30 March 2015.
On 8 May 2019, Ms Felsztynski applied to the Authority under s 328(2) of the Act for its consent to the commencement of damages proceedings.
On 4 September 2019, the Authority confirmed that pursuant to s 330(1) of the Act, Ms Felsztynski had suffered a whole person impairment of 30% or greater and was therefore deemed to have a ‘serious injury’ under s 335(1) of the Act.
As is required under s 333, the parties complied with the mandatory statutory conference and offer process. The statutory conference occurred on 17 October 2019, the Authority’s statutory offer was made on 28 November 2019, and Ms Felsztynski’s statutory counter offer was made on 17 December 2019. All of these steps were taken in accordance with the prescribed periods under this section.
Accordingly, Ms Felsztynski was required to commence her proceedings no earlier than 21 days after the statutory counter offer was made, being 7 January 2020, and not later than 51 days after the statutory counter offer was made, being 6 February 2020.
On 7 February 2020, Ms Felsztynski commenced proceedings in this Court against her employer (the first defendant) and the occupier of the premises (the second defendant), and subsequently served the writ on both defendants.
On 26 August 2020 and 27 August 2020, the defendants filed defences. Neither defence asserted that the proceeding was issued out of time.
By letter dated 16 September 2020, the solicitors for the first defendant notified Ms Felsztynski that the proceeding was commenced outside of the requisite timeframe and was therefore ‘void and invalid’.
On 23 September 2020, the solicitor for Ms Felsztynski wrote to the Authority and sought its consent to commence proceedings out of time under s 337(2)(a).
On 29 September 2020, the Authority advised that in considering the application, the tests to be applied under s 337(2)(a) and s 337(2)(b) were materially different and noted that no submissions had been made addressing the criteria that applied under section 337(2)(b) relating to the fault or omission test. The Authority invited Ms Felsztynski’s solicitor to make such submissions.
On 12 October 2020, Ms Felsztynski’s solicitors submitted that the applicable section was s 337(2)(a) and not s 337(2)(b).
On 16 November 2020, the Authority indicated that it considered the relevant section was s 337(2)(b) rather than s 337(2)(a) and that it did not consent to the commencement of proceedings outside the prescribed time limit.
Previous authorities
It was agreed that a court has not previously determined what event triggers the provisions in s 337(2) of the Act (or its predecessors).
I was taken to a decision of Quinlan v Catholic Regional College Sydenham,[3] which was similar to the present case in that the plaintiff, an injured worker, issued her claim for common law damages 52 days after she made her statutory counter offer. This error was not discovered until approximately 20 months later, well after the defendant had filed a defence and multiple interlocutory steps had been completed. Once the defendant solicitors informed the plaintiff’s solicitors of the error, the plaintiff’s solicitors sought the Authority’s consent to allow the proceedings to continue, pursuant to s 134AB(20A) of the ACA.[4]
[3][2015] VSC 463.
[4]Ibid, [16]-[17].
The Authority considered the worker’s application pursuant to s 134AB(20A)(b) on the basis that the application was made more than 81 days after the plaintiff’s statutory counter offer and refused to give consent due to the plaintiff’s failure to satisfy the fault or omission test. The plaintiff subsequently sought to challenge that determination, submitting that the Authority had purportedly given implied consent to commence the proceedings under s 134AB(20A) of the ACA.
The plaintiff did not submit at any stage that s 134AB(20A) was triggered by the commencement of proceedings. Instead, it appears to have been accepted by the parties that the triggering event was the making of the application for consent to commence proceedings outside of the requisite time. In an attempt to bring the application under subparagraph (a), the plaintiff submitted that serving the writ constituted an application for consent and that the defendant’s consent could be inferred from its ongoing participation in the proceedings.
This submission was rejected by Zammit J on the basis that neither party had any knowledge at the time the writ was served that the proceedings had been issued outside the requisite timeframe, and therefore it could not be demonstrated that the plaintiff had any intention to make such an application.[5] Further, there was no power under the ACA for the Court to cure a failure to comply with the mandatory timetable, and as consent was never provided by the Authority, the proceedings were dismissed.[6]
[5]Ibid, [43].
[6]Ibid, [46]-[47].
The predecessor to s 337 of the Act was considered indirectly by the Court of Appeal in Key v Payne.[7] In that case, the plaintiff was an injured worker who failed to comply with the requirements of s 135A(2DE) of the ACA. The plaintiff issued court proceedings just prior to the expiration of the six year limitation period and subsequently obtained consent from the Authority to bring proceedings on the basis that he had suffered a serious injury. Subsequently, the plaintiff and defendant attended a statutory conference in compliance with s 135A(2DE) and a statutory offer and statutory counter offer were made.
[7] (2004) 10 VR 162 (‘Key’).
As the matter did not resolve, the plaintiff sought to rely upon the proceedings which had been issued prior to him obtaining the serious injury certificate and the steps taken in accordance with s 135A(2DE). The defendant did not initially allege a defect in the claim on account of non-compliance with s 135A of the ACA. After many months however, the defendant raised the issue and contended that the plaintiff was barred from bringing his initial common law proceedings. Consequently, the plaintiff applied to the Authority pursuant to s 135A(6A) for its consent to the commencement of proceedings outside of the prescribed time period. However, the Authority refused the application and the writ was struck out on the basis that the proceeding was a nullity. A subsequent application was made to the Authority pursuant to s 135A(6B) of the ACA.
In describing this application and how the s 135A(6B) applied, Hansen AJA (with whom Charles JA agreed without qualification, and with whom Ormiston JA substantially agreed) said as follows:
The appellant’s next step was to apply to the authority pursuant to s 135A(6B) for consent to the commencement of proceedings. It seems that the application was delivered to the authority on or around 15 November 2002. Sub-section (6B) allows the authority to consent to the commencement of proceedings by the appellant where the appellant is unable to because of sub-s (2DE). The authority must consent within 81 days after the date of the counter offer and must be satisfied that the defence of the proceeding will not be prejudiced. Alternatively, the authority may give its consent after 81 days provided that it is satisfied that the failure to comply with sub-s (2DE) was not due to any fault or omission of the appellant.[8]
[8]Ibid, [17].
The plaintiff’s application under s 135A(6B) was also refused and the plaintiff subsequently reissued proceedings. The defendant sought to have that proceeding struck out on the basis that there had been non-compliance with the statutory timetable. The proceeding was struck out in the County Court and the plaintiff appealed the decision.
On appeal, Hansen AJA held that plaintiff was obliged to comply with s 135A(2DE) and that his failure to do so barred him from bringing common law proceedings.[9] No other discussion occurred as to the meaning and application of the provision, save for an ostensible assumption that the triggering event was the date the Authority gave its consent.
[9]See consent procedure at [37].
The Authority also referred me to several decisions relevant to the consequences of an injured person’s non-compliance with the serious injury gateway requirements in the Transport Accident Act,[10] as well as the Act and its predecessor, the ACA.[11] The effect of Division 2 in Part 7 of the Act is to conditionally extinguish a worker’s right to bring an action for damages for injury sustained in the course of employment, with such a right only being enlivened following compliance with the requirements of the serious injury gateway, as well as the mandatory steps set out in s 333.[12] In accordance with those authorities, and acknowledging her non-compliance with s 333(e), Ms Felsztynski accepted that her proceedings were invalid. However, she contended that with the Authority’s consent, such proceedings would be rendered valid.
[10] Transport Accident Act 1986 (Vic).
[11]Wilson v Nattrass (1995) 21 MVR 41, 20-21 (Ashley J), 4-6 (Hedigan J); Swannell v Farmer [1999] 1 VR 299, 307 [21]-[32] (‘Swannell’), Primary Health Care v Giakalis (2013) 38 VR 165, 175 [40] (‘Giakalis’).
[12]Victoria v Robertson (2000) 1 VR 465, 466 [1] (Callaway JA), 474 [26] (Hansen AJA) (‘Robertson’); Key (n 7), 176-178.
Finally, reference was made to the Court of Appeal decision Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (‘Perakis’),[13] in which a worker contracted asbestosis following exposure to asbestos dust and fibres in the course of his employment. The worker issued a writ without complying with the serious injury gateway requirements of s 135A of the ACA and died eight days later. At the time of his death, the worker had not made an application to the Supreme Court for leave to commence such proceedings, pursuant to s 135BB(3). This section[14] read as follows:
[13](2017) 55 VR 367 (‘Perakis’).
[14]Repealed and succeeded by s 357 of the Act.
135BB Actions by workers with asbestos-related conditions
(3)If a worker commences proceedings under section 134AB or 135A on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to an Associate Judge of the Supreme Court—
(a)for an order allowing leave for the worker to proceed nunc pro tunc; and
(b)for an order allowing an expedited hearing of the proceedings if the asbestos-related condition gives rise to an imminent risk of death.
The worker’s executrix subsequently sought to amend the damages proceedings to claim for herself as a dependent and for the deceased worker’s estate. The claim was brought on the basis that at the time of the worker’s death, his vested cause of action for damages survived for the benefit of his estate, pursuant to s 29(1) of the Administration and Probate Act 1958. The employer asserted that the proceedings should be struck out as the requirements of s 135A had not been complied with, and no exception to those requirements had been applied for or ordered under s 135BB.
The Court of Appeal held that when the worker died, the 30 day period to seek leave to proceed under s 135BB(3) had not expired and that he had a valid cause of action that survived for the benefit of his estate. The requirement to apply for an order under subs (3) was imposed only on a worker and did not apply to an estate which inherited the worker’s cause of action.
The Court distinguished the plaintiff from a worker who is subject to the serious injury gateway requirements under s 135A (or s 134AB)[15] of the ACA. A worker who was required to comply with the gateway provisions was required to take those steps in order to ‘re-enliven or resurrect the common law rights of the worker which have otherwise been conditionally extinguished’[16] by the Act.
[15]This was the equivalent section for injuries suffered on or after 20 October 1999.
[16]Perakis (n 13), 390 [97].
However it was held as s 135BB expressly stated that the serious injury gateway provisions need not be complied with at the time at which the worker issued his or her proceeding, a proceeding so issued was based on the worker’s re-enlivened right to claim damages for an asbestos related condition. It was stated that this was so, even though the application under s 135BB(3) had not been made.
In considering s 135BB, Osborn and Kaye JJA stated:
…s 135BB was intended to operate, and does operate, as a beneficial provision, ameliorating the effect of the stringent provisions prescribed in s 135A and s 134AB, which, in the case of persons suffering asbestos-related injuries, would operate in an unjust manner. The beneficial effect and purpose of the provisions is evident, both from the Second Reading Speech, and from the text of the provisions in the context of the Act. It follows that, in the case of any ambiguity in any of the provisions under consideration, the Court should prefer the construction which more effectively advances the beneficial purpose of the provisions.[17]
[17]Ibid, 389 [94].
Ms Felsztynski’s submissions
Ms Felsztynski submitted that the time frames in s 337(2) relate to the date of commencement of the proceedings, not the date of the application for consent. In support of this, the following submissions were advanced:
Natural reading
On the most natural reading of the section, the phrase ‘commencement of proceedings’ was closest to the time frames contained in s 337(2)(a), and therefore the time frames applied to the date of issue, not the date of the application for consent.
Contextualised reading
The text read in context with other related provisions also supported such a reading.
It was submitted that as the chapeau of s 333 states that the prohibitions on commencing proceedings are subject to consent being obtained from the Authority under s 337, it is appropriate to read both s 333 and s 337 together.
It was noted that s 333, which governs when proceedings may and may not be commenced, identifies three time periods referrable to the date of the statutory counter offer. These are:
(1)21 days following the statutory counter offer, during which proceedings may not be commenced (‘the first period’);[18]
(2)the following 30 days, that is between 21 and 51 days of the statutory counter offer in which proceedings may be commenced (‘the second period’); and
(3)after 51 days of the statutory counter offer, during which proceedings may not be commenced (‘the third period’).
[18]If the worker fails to make a statutory counter offer in accordance with the time required in s 333(e)(i), it is a deemed to have been made on the 21st day pursuant to s 334(2)(a) of the Act.
Ms Felsztynski emphasised that s 337(2)(a) refers to time frames that are identical to those referred to in s 333(e)(i) of the Act, which she argued could not be a ‘coincidence’. When the sections are read together, noting that the time periods correspond, the date in s 337(2) should be accepted as referring to the date upon which proceedings may or may not be commenced.
Legislative history and beneficial construction
The legislative history of s 337, including the earlier iterations in the ACA, was also said to indicate that the commencement of proceedings was the triggering event.
When s 134AB(20A) was introduced, the clause in the amending Act was headed ‘Widening of the ability of the Authority to consent to commencement of action for damages for post-20/10/99 injuries out of time’.[19]
[19] Accident Compensation (Amendment) Act 2001 (Vic) cl 22 (‘the amending Act’).
Further, in the Minister for WorkCover’s second reading speech in respect of this amendment, it was said that:
The bill also extends the discretion for VWA to permit a common-law action for damages to be commenced outside the time limits under the act, thereby enabling some cases to proceed to a damages hearing when previously they could not. This provision will relieve the hardship suffered by those cases whom VWA previously had no power to help. The exercise of this discretion rests with VWA alone. I can assure the house that this provision will not enable cupboards full of long-delayed actions to be revived.[20]
[20]Victoria, Parliamentary Debates, Legislative Assembly, 1 November 2001, 1512 (Lynne Kosky, Minister for WorkCover), (‘Hansard’).
Ms Felsztynski submitted that this amendment was intended to broaden the Authority’s power, allowing it to consent to the commencement of late proceedings, even when the delay was due to the fault or omission of the worker or the worker’s legal representatives, so long as the proceedings were brought within 81 days. Then, if the proceedings were brought outside the 81 days, the fault or omission test would apply.
Noting this legislative history, it was said that such an interpretation was consistent with the beneficial purpose of the legislation. Ms Felsztynski submitted that the new time limits and less stringent test introduced in the amending Act, were intended to ameliorate the problems of a worker not commencing proceedings within the relevant time frame. The purpose of the amending Act was to enable some cases which had previously been unable to proceed, to do so. To achieve this purpose, the section should be taken to mean that the triggering event is the commencement of the proceedings, not the making of the application.
In support of this submission, I was taken to the High Court decision of NSWALC v Minister Administering Crown Lands Act.[21] This case concerned the use of Crown Land, and the interpretation of a provision of the Aboriginal Land Rights Act.[22] The High Court held that in circumstances where legislation is ambiguous and there are competing choices between narrow and broad construction, a broad approach is required if the legislation has a beneficial or remedial purpose to allow the effectuation of such a purpose.[23] However, ultimately in that case, the Court did not consider the words to be ambiguous, and thus such an approach was not required.
[21](2016) 260 CLR 232 (‘NSWALC’).
[22]Aboriginal Land Rights Act 1983 (NSW).
[23]NSWALC (n 21), [32].
The Authority’s contention required words to be read in to the sub-section
Ms Felsztynski submitted that there was an absence of textual support for the Authority’s contention that the triggering event is the date of the application. For such a reading to be preferred, s 337(2) would need to have additional words read into it. It was proposed that to effect the contention that the application is the relevant event, s 337(2) would need to read as follows:
If the Authority is satisfied that a worker is unable to commence proceedings in accordance with this Division because of the operation of section 333, on the application of the worker, the Authority may consent to the commencement of proceedings provided the application for consent is made:[24]
[24](suggested additional words in bold and underlined).
It was submitted that in the absence of good reason, the Court should be very reluctant to read such words into the section.[25] Without such words, it was contended the context was consistent with the triggering event being the commencement of proceedings.
[25]Taylor v Owners Strata Plan No 11564 (2014) 253 CLR 531; Medical Board of Australia v Sami [2022] VSC 90.
The Authority’s submissions
The Authority submitted that the time frames in s 337(2) relate to the date of the worker’s application for consent, not the date of the commencement of the proceedings. In support of this, the following submissions were advanced:
Context and purpose
When Division 2 of Part 7 of the Act is considered as a whole, consistent with its context and purpose, the triggering event is the making of the application. Under this Division, a worker’s common law rights are extinguished and may only be revived by a worker accessing one of the serious injury gateways and complying with the requirements of s 333. Although Ms Felsztynski had been granted leave to proceed, as her proceedings had not been issued in compliance with s 333(e) they were invalid.
It is well established that under s 337(2), Ms Felsztynski was required to apply to the Authority for consent to commence proceedings outside the requisite time frame. As the Authority’s consent was the last contingency, it was only when consent was given that the worker was able to validly commence proceedings.
Textual support
It was also said there was strong textual support for such a construction, as the language of ss 333 and 337(2) refer to events that are to occur in the future. Specifically, it was noted that:
(i)s 337(2) only applies if the Authority is satisfied that a worker is unable to commence a proceeding in accordance with Division 2 because of the operation of s 333;
(ii)s 333 in turn provides that a worker must not commence proceedings in accordance with Division 2 unless there is compliance with the requirements in (a)-(e) – the only exceptions being an application under s 335(2)(d) or the commencement of proceedings with the consent of the Authority under s 337; and
(iii)the consent provided by the Authority under subsection (2) is consent to the ‘commencement of proceedings’.[26]
[26](Emphasis added).
The Authority submitted that as each of the provisions refer to events yet to occur, the Authority’s interpretation that the application for consent is the subject of s 337(2) must be preferred, as the section does not refer to past events involving proceedings already issued.
Further, it was said there was nothing in s 337(2) to indicate that there could be a retrospective process for giving consent to proceedings already issued.
The proceedings were invalid and could not be enlivened by consent subsequently given. It was said that consent could only enliven proceedings issued thereafter.
Reference was made to numerous authorities including Swannell,[27] Robertson,[28] and Key,[29] which, as noted above, establish that a proceeding issued without compliance with the statutory requirements is void, and it was said, cannot subsequently be enlivened by the granting of consent.
[27](n 11).
[28](n 12).
[29](n 7).
It was also said this construction was harmonious with the parallel provision in s 337(1) which enables a worker who is unable to validly commence a proceeding for leave under s 335(2)(d) because of non-compliance with the statutory timeframe for commencement in s 335(2)(d)(i) to apply to the Authority for its consent to the proceeding being commenced.
Finally, the Authority contended that the fact that s 337(2)(a) picks up the statutory timeframes in s 333(e)(i) are equally consistent with its construction of s 337(2), which it said links the broadened discretion to consent to the timing of a worker’s application for consent.
Beneficial construction
In view of the above, it was said by the Authority that the textual and contextual indications were sufficiently clear such that ambiguity giving rise to consideration of a beneficial or liberal interpretation of the section was not required. However, even if it was, the Authority acknowledged that the amending Act was intended to be beneficial.
On the Authority’s contention that the triggering event is the application for consent, benefit would be derived by workers who made an application in respect of a prospective writ (prior to the first period), or for workers who made an application for consent within the 30 day period after the writ was required to be issued (during the second period).[30] For such workers, it was said there was a benefit, as the less strict test would apply with prejudice to the defendant being the only relevant factor.
[30]See [52] for prescribed periods under the Act.
However, the Authority acknowledged that on this construction, the test under paragraph (a) would only be beneficial in situations where the worker knew of the need to make an application, and did so within that limited time period. As such, the Authority conceded the amendment was not ‘wildly beneficial’ as no benefit would be derived for plaintiffs in cases where the error was not noticed until after the 81st day. However, there was nothing within the section to indicate an intention to extend a benefit to those who made an application beyond that 30 day period.
Support of authorities
It was also said that there was support for the Authority’s contention in both Key[31] and Quinlan.[32] Whilst acknowledging that Key was not directly on point, it was emphasised that Hansen AJA expressly referred to the date of the application for consent, rather than the date the proceedings were commenced. The Authority submitted that this reference was obiter which ought to be ‘powerfully persuasive’ in this proceeding.
[31](n 7).
[32](n 3).
Further, it was emphasised that in Quinlan, the triggering event was not in issue and accepted by the parties as being the making of the application for consent.
Comparison with s 357 of the Act[33]
[33]‘Actions by terminally ill workers or workers with asbestos related conditions’.
The Authority also submitted a comparison between s 337(2) and the words used in s 357 of the Act, together with obiter in Perakis,[34] further supported its contention. It was noted that in Perakis, the Court clearly distinguished between the conditional extinguishment of the rights of an injured worker to claim damages for injury suffered in the course of employment, who was subject to ss 135A and 134AB of the ACA,[35] and that of a worker to which s 135BB applies,[36] who is not subject to such extinguishment.
[34](n 13).
[35]the equivalent of which is now s 335 of the Act.
[36]the equivalent of which is now s 357 of the Act.
It was emphasised by the Authority that only cases validly issued under s 357 can avoid the need to satisfy the mandatory steps under Division 2 prior to commencement of proceedings. When a writ is issued in accordance with s 357, the serious injury gateway need not be met and may be subsequently corrected with a nunc pro tunc order to cure any irregularity within the proceeding after its commencement. Therefore, save for a proceeding issued in accordance with s 357, a proceeding that is issued which fails to comply with the mandatory requirements prior to commencement is invalid and cannot be subsequently enlivened.
In other words, the cause of action of a worker to which s 357 applies is not subject to the conditional extinguishment effected by ss 333 and 335, and such a worker may therefore validly commence proceedings based on that retained cause of action. Conversely, a worker to whom s 337 applies is subject to the gateway requirements of Division 2 and his or her cause of action remains conditionally extinguished unless and until the consent that fulfils the last prerequisite to the valid institution of proceedings is granted.
Analysis
There is a clear dispute between the parties as to what the triggering event is under s 337(2) of the Act. There are 3 possibilities – the two advanced by the parties in this application, and the additional possibility Hansen AJA alluded to in Key[37] – the Authority granting consent. As neither party sought to advance this as the triggering event, I will not consider it further, save to note that I consider it demonstrates the obvious ambiguity in the section.
[37](n 7).
To reconcile this ambiguity, I am required to consider the ‘usual principles of statutory construction, which require consideration of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.’[38]
[38]R v A2 (2019) 269 CLR 507, [32]–[37] (Kiefel CJ and Keane J), [124] (Bell and Gageler JJ).
The Act makes it clear that an injured worker’s common law rights are extinguished subject to the requirements contained in Part 7, Division 2 of the Act. Under that Part, once an injured worker satisfies the serious injury gateway, a mandatory timetable must be complied with prior to the issuing of proceedings. If that timetable is not complied with, the only way a worker can proceed with their damages claim is to obtain the consent of the Authority.
The previous sole criteria under which the Authority considered such consent applications was relatively harsh, in that consent could only be granted if the application met the fault or omission test. The amending Act added a new limb and provided in paragraph (a), that the Authority may consent if satisfied that the defence of the proceedings will not be prejudiced. It is apparent from clause 22 in the amending Act,[39] as well as the Minister’s second reading speech, that this amendment was intended to be beneficial to injured workers, who might otherwise have had their entitlement to claim damages shut out.
[39]See above, [16].
Noting the legislative background and the purpose and context of the amended provision, I am satisfied that the triggering event in s 337(2) is the commencement of the proceedings, not the making of the application. The close proximity between the words ‘commencement of the proceedings’ and the relevant time periods in s 337(2) naturally and logically support a finding that the commencement of proceedings is the triggering event. It is clear that s 337(2) is intended to ameliorate the invalidity arising from non-compliance with s 333 and as such the reference in it to the commencement of proceedings, must necessarily refer to those invalid proceedings, which are rendered valid upon the granting of the Authority’s consent.
This reading is further supported when ss 333 and 337(2) are read together. It is clear that an exception to the mandatory steps in s 333 is carved out in circumstances where the Authority consents to the commencement of proceedings which do not otherwise comply with those steps. The mandatory time periods in s 333(e) are replicated in s 337(2)(a). I accept Ms Felsztynski’s submission that this cannot be a coincidence. A sensible reading of those two paragraphs supports a conclusion that the commencement of proceedings triggers the time periods in s 337(2).
In addition to the text and context of the provision, I consider my above conclusion to be consistent with the beneficial purpose intended by the amending Act. The amendment made this more generous limb available for proceedings either issued prematurely or within 30 days of the period in which proceedings could be validly commenced.
It is hard to envisage a circumstance in which a worker would know of the need to make an application within 21 days of the statutory counter offer. However, it is readily conceivable that a worker, by fault or omission of his or her legal representative, may inadvertently issue the proceedings too early in time. In my view, the parliamentary intention of the additional limb was to offer a possible cure for this type of situation, provided the defence will not be prejudiced.
I consider the amendment was also intended to ‘relieve the hardship’[40] in cases such as the present one, or in circumstances analogous to Quinlan,[41] where the proceedings were issued just one day late, but the error was not identified until many months later. If the triggering of the event was the making of the application, situations where the workers’ legal representative inadvertently miscalculated the time period in which to issue proceedings (no matter how short a period of time), would not get the benefit of the more generous limb, for as long as that error remained unknown. The fact that such an argument was never run by the worker in Quinlan, has no bearing on my judgment now.
[40]Hansard (n 20).
[41](n 3).
I also consider that if the triggering event was the making of the application, solicitors acting for employers may well be discouraged from reviewing compliance pursuant to s 333 until much later in time, and in particular, after the 81st day.
Accepting that the proceedings are invalid without the Authority’s consent, when ss 333 and 337(2) are read together, I am satisfied that s 337(2) was intended to revive proceedings which were otherwise invalid. That is, and for the reasons referred to above, consent given by the Authority after the commencement of the proceedings, is sufficient to have those proceedings ‘spring to life’.[42]
[42]Giakalis (n 11), 179 [55].
I was not assisted by the Authority’s submission that its proposed reading of the paragraph was harmonious with the operation of the parallel provision in s 337(1). That submission presumes that the worker’s application and consent obtained under s 337(1) is an event which must occur prior to issuing an Originating Motion more than 30 days after the worker received advice that their serious injury application was denied,[43] such that consent cannot be given subsequent to the issuing of the Originating Motion. I was not taken to any authority to support such a proposition.
[43]Under s 335(c).
Further, I was not assisted by the comparison with s 357. That section concerns a different Division in circumstances where the worker is not required to satisfy the serious injury gateway prior to the commencement of the proceedings. It involves an application made to an Associate Judge of this Court and not the Authority. The decision of Perakis[44] therefore provided no direct assistance to me in determining what the triggering event is under s 337(2).
[44](n 13).
I was also not persuaded that Hansen AJA’s comments in Key[45] were of assistance to me in this matter as the case did not involve consideration of the issue before me. Further, Hansen AJA appeared to propose a triggering event which the Authority did not endorse.
[45](n 7).
Finally, I note that in oral submissions, the Authority conceded that the words in s 337(2) may have been placed in a different order to avoid any uncertainty. I do not consider moving words to be an appropriate course, nor do I consider that adding words to give effect to the Authority’s interpretation (as was suggested by Ms Felsztynski) to be appropriate when the context and purpose of the section does not require this.
Conclusion
For those reasons, I am satisfied that the Authority erred in considering Ms Felsztynski’s application for consent under s 337(2)(b). The application should have been considered under s 337(2)(a). I therefore quash the Authority’s decision of 16 November 2020, and order that it reconsider the application in accordance with law.
I will hear from the parties in respect of costs.
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