Fitzpatrick v Lifetime Support Authority
[2019] SASCFC 97
•9 August 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
FITZPATRICK v LIFETIME SUPPORT AUTHORITY & ANOR
[2019] SASCFC 97
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
9 August 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS - PRESERVATION OF RIGHTS, LIABILITIES AND LEGAL PROCEEDINGS ON AMENDMENT, REPEAL, LAPSING ETC OF ACT OR PROVISION
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF ACTS - RETROSPECTIVE OPERATION
Application for judicial review of a decision by the Lifetime Support Authority (the Authority) to accept the plaintiff as a member of the Lifetime Support Scheme (the LSS) established by the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA) (the LSS Act).
The LSS Act, which came into operation on 1 July 2014, provides for the participation of persons suffering catastrophic injury in a motor vehicle accident in South Australia in the LSS. The LSS provides a scheme for the future care of such persons. The LSS Act provides that a person can become a participant in the LSS against their will.
At the time the LSS Act was enacted the Civil Liability Act 1936 (SA) (the CLA) was amended by the insertion of s 58A. Section 58A provides that a person who is a participant in the LSS is precluded from recovering damages for their past or future treatment, care and support needs in a common law action for damages for injuries suffered in a motor vehicle accident in South Australia.
The plaintiff was significantly injured in a motor vehicle accident which occurred on 16 November 2014. At that time, the plaintiff was not eligible to become a participant in the LSS under the Lifetime Support Scheme Rules 2014 (SA) (the 2014 Rules). Under the 2015 iteration of those rules the plaintiff remained ineligible. Under the Lifetime Support Scheme Rules 2017 (SA) (the 2017 Rules) a person with injuries of the kind suffered by the plaintiff was eligible.
On 13 July 2016 the plaintiff commenced proceedings against the driver of the other vehicle involved in the motor vehicle accident seeking declaratory relief and damages in negligence. On 20 March 2018 the plaintiff was accepted as a participant of the LSS.
On review, the plaintiff seeks an order for certiorari quashing the decision of the Authority accepting her as a member of the LSS, and a declaration by the Court that she is not a member of the LSS and the eligibility criteria contained in the 2017 Rules do not apply in respect of her. The plaintiff also seeks her costs of the action.
The plaintiff relies on s 16(1)(c), (d) and (e) of the Acts Interpretation Act 1915 (SA) (AIA) and common law presumptions concerning interference with accrued rights, existing legal proceedings and remedies, and the alienation and interference with property.
Held, per Stanley J (Kourakis CJ and Peek J agreeing):
1. At time the 2017 Rules were promulgated the plaintiff had not accrued any right to an award of damages at common law for the costs of her future treatment, care and support needs as those damages had not been assessed.
2. The prima facie preservation of an accrued right of the plaintiff to damages pursuant to s 16 of the AIA and the common law had been displaced by a contrary intention in the 2017 Rules, the LSS Act and s 58A of the CLA.
3. The Authority was correct in applying the eligibility criteria in the 2017 Rules to the application to admit the plaintiff as a participant in the LSS. No jurisdictional error has occurred.
4. The plaintiff’s action for judicial review is dismissed.
5. The parties will be heard as to costs.
Held, per Kourakis CJ:
1. Section 16(1)(e) of the Acts Interpretation Act 1915 (SA) does have operation beyond the presumption created by s 16(a)(c).
Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA) s 24, s 25, s 27, s 56; Civil Liability Act 1936 (SA) s 58A; Lifetime Support Scheme Rules 2014 (SA) Part 2, Clause 3.1; Lifetime Support Scheme Rules 2015 (SA) Part 2, Clause 3.1; Lifetime Support Scheme Rules 2011 (SA); Motor Accident Commission Act 1992 (SA s 4, s 25; Acts Interpretation Act 1915 (SA) s 13, s 16; Trade Marks Act 1955 (Cth); Trade Marks Act 1905 (Cth); Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) s 129(2); Compensation (Commonwealth Government Employees) Act 1971 (Cth), referred to.
Diakou Nominees Pty Ltd v Gouger Street Pty Ltd [2017] SASC 72, applied.
Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485; Daly v Thiering (2013) 249 CLR 381; King v Philcox (2015) 255 CLR 304; Doro v Victorian Railways Commissioners [1960] VR 84; Transport Accident Commission v Lanson [2001] 3 VR 250; Esber v The Commonwealth (1992) 174 CLR 430; Director of Public Works v Ho o Sang [1961] AC 901, discussed.
Harrison v Melhem (2008) 72 NSWLR 380; Maxwell v Murphy (1957) 96 CLR 261; Queensland Trustees Ltd v Brisbane City Council [1958] Qd R 518; Noonan v Brisbane City Council [1958] Qd R 593; Sager v Morten (1972) 5 SASR 143; Johnson v Perez (1988) 166 CLR 351; Marsland v Andjelic (1993) 31 NSWLR 162; Nominal Defendant v Gardikiotis (1994) 186 CLR 49; Nicholson v Nicholson (1994) 35 NSWLR 308; Gagner Pty Ltd v Canturi Corporation Pty Ltd (2009) 236 FLR 401; Chang v Laidley Shire Council (2007) 234 CLR 1; ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 269; Rodway v The Queen (1990) 169 CLR 515; Continental Liqueurs Pty Lt v GF Heublein & Bro Inc (1960) 103 CLR 422, considered.
FITZPATRICK v LIFETIME SUPPORT AUTHORITY & ANOR
[2019] SASCFC 97Full Court: Kourakis CJ, Peek and Stanley JJ
KOURAKIS CJ: I have had the advantage of reading the reasons in draft of Stanley J. I adopt the terminology of his Honour’s reasons.
I agree that on a proper construction of the 2017 Rules they are to be applied to all applications made after they came into operation irrespective of the rules which were in force at the time the plaintiff’s cause of action accrued, and that they are validly made.
I also agree that s 16(1)(c) of the AIA presumes that an accrued right to have a tortious wrong redressed is not affected by subsequent legislation, but it does not enact any presumption against statutory modification of the remedy.
On the other hand, I respectfully disagree with the proposition that s 16(1)(e) of the AIA does not have any operation beyond the presumption created by s 16(1)(c) of the AIA. Subparagraph (c) applies the presumption against retrospectivity to the substantive rights and interests in issue, and subparagraph (e) to the associated procedural or adjectival law, including the remedies available in law. Moreover, there are additional reasons to construe legislation as not affecting rights and remedies which are the subject of an extant action to enforce them. First, the plaintiff will have incurred costs in acting to enforce his or her right. Secondly, and more fundamentally, on the commencement of the action the plaintiff engages the exercise of judicial power, with which, it is presumed, the legislature is unlikely to intend to interfere. The third, and related reason, is that it may be arbitrary to distinguish, as between those who have commenced an action, on the basis of the speed with which a judgment has been obtained.
However, s 58A of the CLA predates the plaintiff’s injury and the institution of her action. It provides that the remedy for personal injury is subject to participation in a scheme established, and therefore to such rules as may be made, under the LSS Act. When the plaintiff was injured, and when she instituted her personal injuries action, her remedy was already vulnerable to rules subsequently made pursuant to the LSS.
In short, the making and amendment of rules under the LSS Act was contemplated by s 58A of the CLA. It follows that subparagraphs (c) and (e) of s 16(1) of the AIA have no application.
I would therefore dismiss the plaintiff’s action for judicial review.
PEEK J: I agree with each of the Chief Justice and Stanley J that the correct outcome of this application for judicial review is that it be dismissed.
As to the relatively narrow difference in the respective reasons of their Honours, I consider it unnecessary for me to come to a final view on that matter; I will postpone that rather difficult task until it is necessary to perform it.
STANLEY J:
Introduction
This is an application for judicial review of a decision by the Lifetime Support Authority (the Authority) to accept the plaintiff as a member of the Lifetime Support Scheme (the LSS) established by the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA) (the LSS Act). The decision under review was made on 20 March 2018.
On 1 July 2014 the LSS Act came into operation. It provides for the participation in the LSS of persons suffering catastrophic injury in a motor vehicle accident in South Australia. The LSS provides a scheme for the future care of such persons. The LSS Act makes clear that a person can become a participant in the LSS against their will.
At the time the LSS Act was enacted the Civil Liability Act 1936 (SA) (the CLA) was amended by the insertion of s 58A. Section 58A provides that a person who is a participant in the LSS is precluded from recovering damages for their past or future treatment, care and support needs in a common law action for damages for injuries suffered in a motor vehicle accident in South Australia.
The plaintiff was injured in a motor vehicle accident which occurred on 16 November 2014. She suffered significant injuries. On 4 September 2015 she underwent a below-knee amputation as a consequence of the injuries suffered in the accident.
At the time of the motor vehicle accident the plaintiff was not eligible to become a participant in the LSS having regard to the terms of the Lifetime Support Scheme Rules 2014 (SA) (the 2014 Rules).[1]
[1] LSS Act s 24(1)(e).
On 28 May 2015 the Governor made Lifetime Support Scheme Rules 2015 (SA) (the 2015 Rules) which were substituted for the 2014 Rules. The 2015 Rules did not relevantly change the eligibility criteria from the 2014 Rules. Accordingly, the plaintiff remained ineligible to become a participant in the LSS.
On 13 July 2016 the plaintiff commenced proceedings against the driver of the other vehicle involved in the accident of 16 November 2014, Amy Louise Songer. The plaintiff sought declaratory relief and damages in negligence. By her defence filed on 15 May 2018 liability for the plaintiff’s injuries was admitted. The plaintiff’s common law action has not been resolved.
Ms Songer is insured against the plaintiff’s claim by the Motor Accident Commission (MAC), a statutory corporation continued in existence by s 4 of the Motor Accident Commission Act 1992 (SA) (the MAC Act). MAC is an instrumentality of the Crown and holds its property on behalf of the Crown.[2]
[2] MAC Act s 4(3).
On 30 May 2017 the Governor made the Lifetime Support Scheme Rules 2017 (SA) (the 2017 Rules) which were substituted for the 2015 Rules. The 2017 Rules amended the eligibility criteria. By the 2017 Rules, a person with injuries of the kind suffered by the plaintiff was eligible to become a participant in the LSS.
On 6 September 2017 Alliance Australia Insurance Ltd, as agent for MAC, applied to the Authority for the plaintiff to be accepted as a participant in the LSS pursuant to s 25(1)(b)(ii) of the LSS Act. The application was made without the consent of the plaintiff and against her wishes. Nonetheless, the application was permitted pursuant to s 25(2) of the LSS Act.
By letter dated 20 March 2018 the Authority advised that it had determined to accept the plaintiff as a participant in the LSS with effect from 14 March 2018. In so doing, the Authority applied the eligibility criteria in the 2017 Rules.
If valid, the effect of the determination is that the plaintiff is a participant in the LSS and the provision and funding of her future treatment, care and support needs is to be determined by the Authority in accordance with Part 4 of the 2017 Rules. Further, by operation of s 58A of the CLA, a court hearing and deciding the plaintiff’s claim for damages for personal injury resulting from the motor vehicle accident cannot award damages in respect of her treatment, care and support needs arising during the period in which she is a participant in the LSS i.e. since 14 March 2018.
The issue
The issue raised by the application is whether the Authority, in assessing the application by the MAC for the plaintiff to become a participant in the LSS, erred in applying the eligibility criteria prescribed by the 2017 Rules. In other words, do the 2017 Rules apply to the application made by the MAC, or do the eligibility criteria in the earlier iterations of the Rules apply?
Submissions of the parties
The plaintiff contends that, notwithstanding the substitution of the 2017 Rules for the 2015 Rules, the eligibility criteria in the 2015 Rules (being relevantly the same as the criteria in the 2014 Rules) continue to apply to the application in respect of the plaintiff. If the Authority has applied the wrong eligibility criteria, jurisdictional error has occurred entitling the plaintiff to an order in the nature of certiorari.
The plaintiff submits that on the proper construction of the LSS Act, the power of the Governor to make and substitute LSS Rules under s 56 of the LSS Act does not extend to making rules that alter the eligibility criteria in such a way as to effect an acquisition of property without just compensation. It follows that, in accordance with s 13 of the Acts Interpretation Act 1915 (SA) (the AIA) which requires a provision of a statute to be read down so as not to exceed the power pursuant to which it is made, the 2017 Rules are to be construed as not operating so as to have that effect. Further, and in the alternative, the plaintiff submits that on the proper construction of the 2017 Rules, the eligibility criteria set out in the 2017 Rules do not apply to a person in circumstances where the application of the LSS to that person would: first, alter or interfere with any right already accrued and existing at the time of the substitution of the criteria in the 2017 Rules for the criteria in the 2015 Rules; second, alter or interfere with a legal proceeding, or the remedy in respect of rights the subject of a legal proceeding, or the substantive law to be applied in a legal proceeding, already commenced by a person at the time of the substitution of the criteria in the 2017 Rules for the criteria in the 2015 Rules; and third, effect an acquisition of property without compensation.
The plaintiff’s contentions rely upon s 16(1)(c), (d) and (e) of the AIA and upon a range of closely related, and overlapping, common law presumptions of statutory interpretation concerning interference with accrued rights, existing legal proceedings and remedies, and the alienation and interference with property.
The plaintiff submits that s 16 requires a reading down of the general words in the LSS Act, the 2017 Rules and s 58A of the CLA so as to limit their operation as contemplated by the section. Further, she submits that the general words of these provisions that enliven the operation of s 16 cannot indicate a contrary intention to interfere with accrued or existing rights.
The plaintiff submits that s 16 of the AIA and the common law operate to protect the plaintiff against retrospective interference, pursuant to s 58A, with her existing accrued or vested right to damages for personal injury arising at the time of the motor vehicle accident, which is the subject of pending litigation. Finally, she contends that s 56 of the LSS Act is to be construed as limited in its operation so as not to interfere with those accrued rights.
The defendant submits that the Authority was correct to apply the eligibility criteria in the 2017 Rules to the plaintiff. The 2017 Rules expressly provide that eligibility is “limited to people injured in a motor vehicle accidence who meet one or more of the following injury criteria at the time that the application is made” (emphasis added). There is nothing in the text of the 2017 Rules, or the LSS, that supports a construction whereby the eligibility criteria only operates in respect of certain classes of potential applicants for participation, but not others.
The defendant does not take issue with the proposition that s 58A operates prospectively. It directs a court in making an assessment of damages not to award certain heads of damage. Accordingly, it does not affect the damages that a plaintiff, who is a participant in the LSS, might otherwise have been awarded. Section 58A does not prevent a participant from claiming damages and does not affect the underlying cause of action of the participant. It only affects the assessment of damages in respect of prospective care needs that a participant in the LSS requires after the date from which a participant has been accepted into the LSS. It has no impact on damages that a participant might recover for losses incurred prior to becoming a participant. It follows that the operation of s 58A does not affect rights or liabilities which the law had defined by reference to past events. A participant’s entitlement to damages for future care not yet suffered by a participant at the time of acceptance into the LSS, does not rest on events or transactions that were otherwise past and closed.
The defendant submits that the discrimen for participation under the LSS turns on the extent of injuries suffered, not on the date of injury or whether legal proceedings have been issued. There is no basis to consider that a participant in the LSS has suffered any prejudice by being precluded from obtaining an award of damages for future treatment, care and support needs.
Finally, the defendant says the plaintiff’s contention that the operation of s 58A results in the acquisition of the plaintiff’s property without just compensation is wrong, as s 58A did not result in the acquisition of any property of the plaintiff; second, there is no evidence that the provision of lifetime support under the LSS is not fair compensation; and third, there is no evidence that the State acquired any benefit by making the 2017 Rules.
Relevant legal principles
In Diakou Nominees Pty Ltd v Gouger Street Pty Ltd,[3] I discussed the relevant legal principles applicable to this matter in the following terms:[4]
[3] [2017] SASC 72.
[4] [2017] SASC 72 at [35]-[41].
There is a canon of construction or presumption that legislation does not intend to alter or affect, retrospectively, existing rights and obligations of persons subject to that legislation. In Maxwell v Murphy, Dixon CJ said:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to the facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
That principle is enshrined in s 16(1) of the AIA which relevantly provides:
Where an Act is repealed or amended ... then, unless the contrary intention appears, the repeal, amendment ... does not –
(a) revive anything not in force or existing at the time the repeal, amendment ... takes effect; or
(b) affect the operation of the repealed, amended ... Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment ...; or
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or excisable ... prior to the repeal, amendment ...; or
(d) affect any duty, obligation, liability ... imposed, created or incurred, ... prior to the repeal, amendment ...;
As was said in Chang and Anor v Laidley Shire Council, “retrospectivity” is a word that is not always used with a constant meaning. Accordingly, it is important to identify the statutory provisions which are said to be given “retrospective” effect and to identify precisely the respect or respects in which they are being given that effect. The presumption that a statute does not, absent clear intention, operate retrospectively is understood to mean that it will not provide that at some date prior to its enactment the law should be taken to have been that which it was not. As Fullagar J said in Maxwell v Murphy:
I think that the word “retrospective” has acquired an extended meaning in this connexion. It is not synonymous with “ex post facto”, but is used to describe the operation of any statute which affects the legal character, or the legal consequences, of events which happened before it became law.
Interference with existing rights does not make a statute retrospective. Many if not most statutes affect existing rights.
In Coleman v Shell Co of Australia, Jordan CJ said:
[An Act] is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future ...
Upon a consideration of the authorities, I think that, as regard any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.
In Kraljevich v Lake View & Star Limited, Dixon J (as he then was) said:
The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends, appears with reasonable certainty.
In AEU v Fair Work Australia, French CJ, Crennan and Kiefel JJ said that it is to be assumed that in enacting a statute which falsifies retrospectively existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations, the Parliament will use clear language to effect that result. They said:
Consistently with its underlying rationale, the resistance of the common law to construing statutes as taking effect before the dates of their enactment is graduated according to the extent of their propounded effects. In RS Howard & Sons Ltd v Brunton, Griffith CJ said:
"it is a settled rule of construction of Statutes that a law is not to be construed as retrospective in its operation unless the Legislature has clearly expressed that intention, and a further rule that it is not to be construed as retrospective to any greater extent than the clearly expressed intention of the Legislature indicates."
That graduated response was also reflected in the quotation by Lord Mustill in L'Office Cherifien from the judgment of Staughton LJ in Secretary of State for Social Security v Tunnicliffe:
"It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended."
In Attorney-General (NSW) v World Best Holdings Ltd Spigelman CJ referred to the judgments of Staughton LJ and Lord Mustill and said:
"This approach requires the court to determine the scope and degree of the unfairness or injustice that is applicable in the particular case. The greater the unfairness or injustice, the less likely it is that Parliament intended the Act to apply. Where Parliament has used general words the courts will apply the well established technique of reading them down."
While "fairness" and "justice" denote values underlying the relevant common law principles, it is neither necessary nor desirable, as a general rule, that the task of construction be mediated by broad evaluative judgments invoking that terminology. They carry the risk that the courts may then exceed their proper constitutional function. It is sufficient to focus upon the constructional choices which are open on the statute according to established rules of interpretation and to identify those which will mitigate or minimise the effects of the statute, from a date prior to its enactment, upon pre-existing rights and obligations.
[Footnotes omitted.]
When an Act is amended, the effect of the amendment upon existing rights and liabilities is determined by the meaning of the statute. The common law developed rules or canons of statutory construction as an aid to discovering that meaning. Those rules or canons are enshrined in the AIA. Those rules or canons are subject to any contrary intention evinced with sufficient clarity in the statute. While those rules distinguish between retrospective and prospective operation of the statute, that distinction is not always clear-cut. The terms “retrospective” and “prospective” may often be a convenient shorthand but, in a given case, it may be necessary to identify more precisely the particular application of the amendment to the statute in question.
[Footnotes omitted.]
In Attorney-General (Qld) v Australian Industrial Relations Commission,[5] the High Court considered the equivalent provision to s 16 of the AIA in the Acts Interpretation Act 1901 (Cth). Gleeson CJ said:[6]
When a statute changes the law, the effect of the change upon existing rights, liabilities, claims, or proceedings is determined by the meaning of the statute. The common law developed rules of statutory construction as an aid to discovering that meaning. Such rules involved presumptions; but, being rules of construction, they were subject to any contrary intention evinced with sufficient clarity in the statute. When expressed in summary form, those rules distinguished between retrospective and prospective effect, and between procedural provisions, and provisions affecting rights or liabilities. However, such distinctions are not always clear-cut. The terms retrospective and prospective may often be a convenient shorthand, but in a given case it may be necessary to identify more precisely the particular application of the alteration to the law in question. And, as the present case shows, there may be rights which, in their nature, are closely bound up with procedures and remedies.
The Acts Interpretation Act 1901 (Cth) is, according to its long title, an Act for the interpretation of Acts of Parliament and for shortening their language. It shortens the language of Acts of Parliament by making it unnecessary for Parliament to enact elaborate and repetitive provisions anticipating possible uncertainties and declaring the legislative intention on those points. Naturally, the Acts Interpretation Act makes repeated reference to the concept, central to statutory construction, of intention. Parliament, having expressed its intention as to the way in which its enactments are to be interpreted, frames its legislation accordingly. But its general expressions of intention are subject to anything that appears in the particular legislation.
Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.
[Footnote omitted.]
[5] [2002] HCA 42, (2002) 213 CLR 485.
[6] [2002] HCA 42 at [6]-[8], (2002) 213 CLR 485 at 492-493.
The question before the Court is one of statutory construction. At issue is whether s 16 preserves a “right” to pursue a claim for a particular head of damage in a common law action which has been precluded by the making of the 2017 Rules and s 58A of the CLA. The resolution of the issue raised by this application is to be resolved by a consideration of the text, context and purpose of the 2017 Rules, the LSS Act and s 58A of the CLA. The meaning of these provisions is to be understood in the light of s 16 of the AIA.
It is convenient to refer to the relevant provisions of the LSS Act.
The LSS Act
The LSS Act provides a scheme for the lifetime treatment, care and support of persons permanently and catastrophically injured in motor vehicle accidents irrespective of who caused the injury. The LSS Act applies to injuries suffered in a motor vehicle accident occurring on or after 1 July 2014.
Section 24(1) of the LSS Act provides for the eligibility of a person to be a participant in the LSS. In particular, s 24(1)(e) provides that a person is eligible to be a participant in the LSS if the injury suffered by the person satisfies the criteria specified by the LSS Rules for eligibility for the LSS provided by the LSS Act. Pursuant to s 25 a person may become a participant in the LSS by the making of an application. The application must be made to the Authority by the eligible person, an insurer under a policy of insurance in respect of the motor vehicle involved in the relevant motor vehicle accident, or the nominal defendant. Pursuant to s 25(2) an application does not require the consent of the eligible person.
However, s 24(3) provides that a person is not eligible to be a participant in the LSS in relation to an injury if the person has been awarded damages, pursuant to a final judgment entered by a court or a binding settlement, in respect of the future treatment, care and support needs of the person that relate to the injury.
Section 27 provides that the Authority will pay all necessary and reasonable expenses incurred by or on behalf of a person in relation to the assessed treatment, care and support needs of the person. The needs of a person are those assessed by the Authority to be treatment, care and support needs that are necessary and reasonable in the circumstances and relate to the injury suffered in the motor vehicle accident. The Authority’s assessment is subject to a right of review.
Section 56 of the LSS Act is the source of power to make the LSS Rules. Section 56(1) provides that the Governor may, on the recommendation of the Authority, make LSS Rules for or with respect to any matter that, by the Act, is required or permitted to be subject to the Rules. The power to make LSS Rules extends to specifying eligibility criteria for the LSS. Section 56(5) provides that the LSS Rules (including any variation, revocation or substitution) will come into operation on the day they are made or from a later day or time specified in the LSS Rules. It can be seen that s 56 only contemplates a prospective operation of the LSS Rules.
Section 58A of the CLA
The enactment and commencement of s 58A coincided with the enactment and commencement of the LSS Act. The amendment to the CLA whereby s 58A was enacted was effected by clause 6 of Schedule 2 to the LSS Act. The provisions are intended to operate together and s 58A is to be viewed as an aspect of the same legislative scheme as the LSS Act. It takes its purpose from the establishment of the LSS. Because the LSS provides for the lifetime treatment and care of a person who suffers catastrophic and permanent injury in a motor vehicle accident the injured person does not need and is not entitled to damages for treatment and care needs. Section 58A provides:
(1)No damages may be awarded to a person who is a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 in respect of any of the treatment, care and support needs of the person, or any excluded treatment, care and support needs, as defined or determined under that Act (whether being past or future needs), that relate to the motor vehicle injury (as defined by that Act) in respect of which the person is a participant in that Scheme and that arise (or will arise) during the period in respect of which the person is a participant in the Scheme.
(2) Subsection (1) applies—
(a) whether or not the treatment, care and support needs are assessed treatment, care and support needs under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013; and
(b) whether or not the Lifetime Support Authority is required to make a payment in respect of the treatment, care and support needs concerned; and
(c) whether or not any treatment, care, support or service is provided on a gratuitous basis.
(3)A reference in subsection (1) to a person who is a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 will be taken to include a reference to a person who has been an interim participant in that Scheme (and who has received any treatment, care and support needs under that Act).
Section 16 of the AIA
Section 16 of the AIA relevantly provides:
(1)Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not—
…
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or
(d) affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
Text and context
The text of the 2017 Rules does not support the plaintiff’s construction. Pursuant to Clause 3.1, Part 2 of the 2017 Rules, eligibility to be a participant in the LSS depends upon the person satisfying the “injury criteria at the time that the application is made”. Both the 2014 and the 2015 Rules contain the same description as to the time at which the “injury criteria” applied.[7] This prescription is consistent with the requirements of the LSS Act. A person is only eligible to be a participant in the LSS if, inter alia, “the injury suffered by the person satisfies the criteria specified by the LSS rules for eligibility”.[8] The LSS Rules are required to “establish criteria for eligibility for lifetime participation”.[9] It is inherent in the statutory requirement that the LSS Rules establish such criteria that the Rules provide the date on which the person’s eligibility is to be assessed against the criteria. That temporal provision is necessary in the circumstances because both the extent of the person’s injuries, and the criteria themselves, may change from time to time.
[7] See Clause 3.1, Part 2 of the 2014 Rules and Clause 3.1, Part 2 of the 2015 Rules.
[8] LSS Act s 24(1)(e).
[9] LSS Act s 24(2).
The natural meaning of the 2017 Rules and the LSS Act is that the LSS is to apply to injuries that occur after the commencement of the LSS on 1 July 2014 and that the LSS Act, in expressly providing for the making of rules and the variation of those rules, intends that the eligibility criteria can be varied and that varied criteria will apply prospectively to applications to participate in the LSS made after the date the varied rules come into effect.
A contextual analysis of the 2017 Rules and the LSS Act does not support a construction of those instruments which would preserve the common law entitlement to damages for future treatment, care and support of the catastrophically injured as a result of a motor vehicle accident where the very purpose of those instruments is to provide an alternative statutory scheme to meet those needs on an ongoing lifetime basis.
In Daly v Thiering[10] the High Court, in considering the cognate legislation in New South Wales, said that in the context where legislatures are adopting statutory schemes of compensation for injuries suffered in motor vehicle accidents it is not appropriate to apply the traditional jealous scrutiny to provisions that might incidentally affect common law rights where the statutory scheme evinces an unmistakable intention to cut back those rights.[11] In their joint reasons Crennan, Kiefel, Bell, Gageler and Keane JJ, citing with approval the reasons of Basten JA in Harrison v Melhem,[12] said:[13]
[W]here consideration of the legislation, in a given statutory context, favours a construction involving greater rather than lesser constraint, there is no reason not to give effect to the construction so indicated.
[10] [2013] HCA 45, (2013) 249 CLR 381.
[11] [2013] HCA 45 at [32]-[33], (2013) 249 CLR 381 at 392.
[12] (2008) 72 NSWLR 380 at 409.
[13] [2013] HCA 45 at [32], (2013) 249 CLR 381 at 392.
To similar effect, in King v Philcox[14] Keane J said:[15]
Legislative measures which deny the remedy of damages in certain cases of negligently inflicted personal injury are now familiar measures, taken in the public interest to preserve the general availability of the remedy by ensuring the viability and affordability of arrangements to meet the costs involved: such measures should not be given an artificially narrow operation. Given the unmistakable intention of s 53(1)(a) of the Act to cut back common law rights on a selective basis, it would be out of place to insist upon an artificial construction in order to preserve common law rights. As was said by Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in Australian Securities and Investments Commission v DB Management Pty Ltd:
“It is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve.”
[14] [2015] HCA 19, (2015) 255 CLR 304.
[15] [2015] HCA 19 at [42], (2015) 255 CLR 304 at 326.
The correct construction of s 58A of the CLA must be informed by these statements of principle.
Section 58A, in providing that a particular head of damages cannot be awarded to a participant in the LSS, constitutes a prospective direction to a court undertaking an assessment of damages. To this extent, s 58A affects the extent of damages to be awarded to a plaintiff who is a participant in the LSS. However, s 58A does not prevent a participant from pursuing an award of damages not precluded by s 58A and does not affect the underlying cause of action that the plaintiff has accrued.
A person who suffers injury in a motor vehicle accident that was caused by the negligence of another has a cause of action against that person. The common law provides that a remedy for that cause of action is an entitlement to damages.
Section 58A is a law regulating the manner in which a plaintiff’s cause of action is to be enforced.[16] It is a provision of limitation. It governs how a court in common law proceedings is to assess damages where a plaintiff is a participant in the LSS. However, it does not affect the existence of a plaintiff’s underlying cause of action. It does not affect the plaintiff’s right to seek an assessment of damages. It does limit the extent of the damages that may be awarded. Section 58A is to be applied by the court that is adjudicating upon the plaintiff’s common law claim. The statutory command operates on the court at the time the damages are “awarded”. Accordingly, changes to the eligibility criteria to be applied by the Authority in respect of a prospective application under s 25 of the LSS Act does not affect the plaintiff’s accrued rights.
[16] Maxwell v Murphy (1957) 96 CLR 261 at 267.
A consideration of the authorities demonstrates that comparable provisions to s 58A which amend or revoke common law entitlements apply to pending and prospective judicial proceedings notwithstanding that the material facts that gave rise to the proceedings occurred before the repeal or amendment.[17] Such repeals and amendments do not in the relevant sense operate retrospectively and do not affect accrued rights. For example, in Doro v Victorian Railways Commissioners[18] at the time that the plaintiff suffered injury due to the tortious conduct of the defendant there was a statutory cap on the damages that could be awarded. Before the plaintiff’s action came to trial the statutory cap was increased. Adam J held that the point of time for the operation of the statutory provision, both in its original and amended form, was the time when the judge and jury came to act at trial. The legislation before the amendment did not limit the liability of the defendant and thereby confer any immunity or right upon them. The statute left untouched the measure of their liability but imposed restrictions on the jurisdiction of the judge and jury at the hearing of the action. The amending Act was given full effect as it purported only to regulate what could be recovered by way of damages at trial. It did not purport to alter in any way pre-existing rights and liabilities.
[17] Queensland Trustees Ltd v Brisbane City Council [1958] Qd R 518; Noonan v Brisbane City Council [1958] Qd R 593; Doro v Victorian Railways Commissioners [1960] VR 84; Sager v Morten (1973) 5 SASR 143; Johnson v Perez [1988] HCA 64, (1988) 166 CLR 351; Marsland v Andjelic (1993) 31 NSWLR 162; Nominal Defendant v Gardikiotis [1996] HCA 53, (1996) 186 CLR 49; Nicholson v Nicholson (1994) 35 NSWLR 308.
[18] [1960] VR 84.
In Transport Accident Commission v Lanson[19] Phillips JA, with whom Winnecke ACJ and Charles JA agreed, explained the effect of such amending provisions by reference to the amendment to the analogous statutory provision in Doro:[20]
The amendment was seen as affecting (in the future) what might happen at trial (in the future) and not the underlying (and pre-existing) liability of the [defendant] which remained unchanged.
[19] [2001] 3 VR 250.
[20] [2001] 3 VR 250 at [47].
Section 58A only affects the assessment of damages from the time the plaintiff became a participant in the LSS. Section 58A limits the right to damages for treatment, care and support needs prospectively from that date.
When the 2017 Rules were proclaimed on 30 May 2017, the plaintiff had incurred actual economic loss by incurring medical expenses. Section 58A has no operative effect in respect of her claim for damages to recover that loss. The commencement of the 2017 Rules did not affect her entitlement to have those damages assessed. However, as at 30 May 2017 the plaintiff had not incurred any economic loss in respect of prospective treatment, care and support needs. Her claim to recover damages in respect of the costs of those prospective needs was not defined by reference to past events and did not rest on events or transactions that were otherwise past and closed.[21]
[21] Maxwell v Murphy [1957] HCA 7, (1957) 96 CLR 261 per Dixon CJ at 267.
Prior to being a participant in the LSS the plaintiff had no more than a mere expectation that in the future an award of damages would include a head of damages for the costs of future care and treatment.
As the plaintiff’s injuries arose from a motor vehicle accident that occurred after the commencement of the LSS Act and s 58A of the CLA, her entitlement to damages was always subject to the potential that those statutory provisions would apply to her.
As at 30 May 2017 the plaintiff did not enjoy an accrued right to damages in respect of those heads of damages to which s 58A applies. Any future award of damages by a court that assesses the plaintiff’s claim to damages in respect of the loss occasioned by the costs of future treatment, care and support needs depends on the state of the law and the evidence at the date of judgment when damages are assessed. As her loss will not crystallise until the assessment of damages is made,[22] the plaintiff had no accrued right before that time to receive any particular sum by way of damages.[23]
[22] Johnson v Perez [1988] HCA 64, (1988) 166 CLR 351 at 388.
[23] Gagner Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413 at [53], (2009) 236 FLR 401 at 414.
Moreover, it is important to recognise that the LSS came into operation on 1 July 2014. From that time, it has been the case that any person suffering catastrophic injury in a motor vehicle accident in South Australia might become a participant in the LSS whether on their own application or that of an insurer or the nominal defendant. It is in the nature of catastrophic injuries that they can be unstable. Therefore, although the nature of an injury suffered at the time of a motor vehicle accident, or its condition at a subsequent time when proceedings are issued, may not entitle an injured person to participation in the LSS, the symptoms may subsequently deteriorate with the consequence that the person may become eligible to participate in the LSS prior to the entry of a final judgment. Accordingly, even prior to the commencement of the 2017 Rules on 30 May 2017, there was always the possibility that the plaintiff’s injuries would worsen prior to judgment such that she would have become eligible to participate in the LSS under the previous rules. In those circumstances the plaintiff was always at risk that she would be accepted as a participant in the LSS prior to the commencement of the 2017 Rules.
The discrimen for participation in the LSS depends on the extent of the injury suffered, not on the date of injury or whether legal proceedings have been issued. These factors support a construction of the 2017 Rules that renders them applicable to an injured person by reference to the eligibility criteria prescribed at the time the application is made. Implicit in that analysis is the proposition that the eligibility criteria may change from time to time.
The immediate effect of the commencement of the 2017 Rules was to change the eligibility criteria against which the Authority would assess prospective applications pursuant to s 25 of the LSS Act. The proclamation of the 2017 Rules did not amend or repeal s 58A. Section 58A continues to limit any award of damages to a person who becomes a participant in the LSS in respect of that person’s prospective costs of treatment, care and support needs. Further, the proclamation of the 2017 Rules did not result in the application of s 58A to the plaintiff’s claim to damages. That was the result of the plaintiff being admitted as a participant in the LSS.
Accordingly, considerations of text and context support a construction whereby the 2017 Rules applied to the application by the MAC for the plaintiff to become a participant in the LSS.
A purposive construction
In Daly v Thiering[24] the High Court identified the purpose of the cognate statutory scheme in New South Wales as follows:[25]
It seems tolerably clear that it was the intention of the government to introduce legislation which would establish a scheme with these features:
(a)It would cover those who, as a consequence of a motor vehicle accident, were catastrophically and permanently injured;
(b)The injuries were such that the individuals would require treatment and care for the whole of their lives;
(c) The LCS Scheme would provide for all of that treatment and care, including attendant care, for as long as it was necessary on an individually assessed basis;
(d) Because the LCS Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs including attendant care;
(e) The only limitation on the provision of treatment and care was that it was reasonable in the circumstances, and that the injury was caused in a motor vehicle accident.
[24] [2013] HCA 45, (2013) 249 CLR 381.
[25] [2013] HCA 45 at [14], (2013) 249 CLR 381 at 388.
There is no reason to adopt a different construction of the South Australian scheme. The purpose of the scheme of the LSS Act and s 58A of the CLA is to replace a once and for all assessment of common law damages for the costs of future care, treatment and support with a lifetime right to the provision of treatment, care and support for those who suffer permanent and catastrophic injuries in motor vehicle accidents. The scheme of the LSS Act replaces a common law award of damages that estimates prospective treatment, care and support needs for a right to lifetime support which will meet those actual needs indefinitely, whatever those needs might be from time to time. Further, the rights conferred on the catastrophically injured by the LSS Act do not depend upon the existence of any tortious liability. The legislative purpose of the LSS Act and s 58A of the CLA is not to preserve the common law right to damages for an injured person’s prospective treatment, care and support needs. As the High Court said in Daly v Thiering,[26] of the equivalent statutory scheme in New South Wales, there is no occasion to read the language of [s 58A] with an eye to preserving the common law rights of a participant in the scheme.
[26] [2013] HCA 45 at [33], (2013) 249 CLR 381 at 392.
Further, this makes clear it is inherent in the statutory scheme that the eligibility criteria may change from time to time.[27] The Governor is given the express power, on the recommendation of the Authority, to “vary, revoke and substitute LSS Rules”.[28] That contraindicates a construction which reads down the express language of the statutory scheme to preserve common law rights of the catastrophically injured where the legislature has created an alternative scheme to provide for their needs other than by an award of damages for an aspect of their future loss.
[27] LSS Act s 24(1)(e) and 24(2).
[28] LSS Act s 56(2).
In respect of injuries suffered in motor vehicle accidents that occur after 1 July 2014, it would be contrary to the statutory purpose of the LSS to have multiple sets of eligibility criteria applying in respect of future applications depending on whether or not an injured person has, or may have, common law rights. This construction is supported by the terms of s 24(3) of the LSS Act which provide that a person is not eligible to be a participant in the LSS if the person has been awarded damages pursuant to a final judgment entered by a court or in a binding settlement for his or her catastrophic injuries. The effect of this provision is to provide expressly the point at which eligibility for the LSS ends by reference to the common law claim. It follows that the statutory scheme intends that at any point until the final award of damages a plaintiff’s claim may be subject to the operation of s 58A. That is so whether s 58A becomes applicable to the plaintiff for whatever reason including any amendment to the eligibility criteria.
The plaintiff’s reliance upon s 56(5) of the LSS Act is misplaced. The prescription that any variation, revocation or substitution of the LSS Rules will come into operation on the day the rules are made, or such later date as specified, does not support the plaintiff’s construction that the 2017 Rules cannot apply to determine the plaintiff’s eligibility to participate in the LSS. That provision is concerned with the temporal operation of the LSS Rules. The 2017 Rules do not purport to provide that at some date prior to their proclamation the injury criteria is taken to have been that which it was not.[29]
[29] Chang v Laidley Shire Council [2007] HCA 37 at [111]-[112], (2007) 234 CLR 1 at 32-33; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 at [27], (2014) 254 CLR 1 at 15.
The statutory scheme evinces an intention that eligibility for participation in the LSS depends upon the terms of the LSS Rules in force at the time an application is made for a person to be admitted as a participant. It does not evince an intention that eligibility for participation in the LSS is subordinate to any common law right to damages for future care needs until the date of a final award of damages.[30]
[30] By way of analogy, see Diakou Nominees Pty Ltd v Gouger Street Pty Ltd [2017] SASC 72 at [45] and [53].
In addition, there is no basis to conclude that the application of the 2017 Rules to the plaintiff occasions any unfairness. There is no evidentiary foundation, nor it is possible to conclude, that the plaintiff will necessarily be worse off financially as a lifetime participant in the LSS compared to her receipt of an award of damages under the head of future care costs. The only certainty is that an award of damages will not accurately reflect the actual costs to the plaintiff under that head of damages. The award will prove too little or too much. Any award of damages in respect of future costs is necessarily an evaluative estimate of future events and costs. The further into the future such an assessment must be made, the more uncertain that evaluative estimate becomes. That difficulty in respect of this particular head of damages is compounded by the chance that a plaintiff’s injuries will get worse over time.
Conversely, but for the same reason, the Court cannot accept that it is in the financial interests of the State for the plaintiff to be a participant in the LSS. The actual cost to the State of the plaintiff’s participation in the LSS may be more or less than an award of damages for the costs of future care.
In any event, not every person who has common law rights will wish to be compensated by an award of damages rather than participate in the LSS. Luntz has critiqued the unfairness and difficulties of the common law approach to the assessment of lump sum damages.[31] The preference for participation in the LSS over an award for damages for future care might apply to any person, but particularly any plaintiff whose damages might be reduced by an apportionment of liability for his or her contributory negligence.
[31] Luntz Assessment of Damages for Personal Injury and Death (4th ed 2002) [1.2.8] to [1.2.17].
Accordingly, there is no foundation for the plaintiff’s submission that her construction is supported by considerations of justice and fairness. On the contrary, if the plaintiff’s construction is accepted, it might work an unfairness to any person who suffers injury or institutes proceedings prior to the commencement of the 2017 Rules who seeks to become a participant in the LSS subsequent to 30 May 2017.
It follows that a purposive construction supports the textual analysis considered in the statutory context of the LSS.
Do the presumptions enshrined in s 16 of the AIA and the common law compel a contrary conclusion?
The plaintiff seeks to invoke the presumptions contained in each of s 16(1)(c), (d) and (e) of the AIA, together with a range of closely related and overlapping common law presumptions of statutory construction.
A consideration of each of the presumptions relied upon by the plaintiff demonstrate that they can be distilled to two substantive issues: first, whether the commencement of the 2017 Rules relevantly affected any accrued right of the plaintiff; and, second, if so, whether the prima facie preservation of that right has been displaced by a contrary intention in the 2017 Rules, the LSS Act or s 58A of the CLA.
As I have explained earlier in these reasons, the general rule of the common law, enshrined in s 16 of the AIA, is that an amending or appealing Act ought not, unless the statute clearly evinces a contrary intention, apply to facts or events that have already occurred so as to affect accrued rights or liabilities which the law had fixed by reference to past events. At issue is whether by reason of the plaintiff suffering injury, or commencing an action for damages in respect of her loss as a result of that injury, she had accrued any right of the kind protected by the common law or s 16. The right claimed by the plaintiff is a right to damages of the kind precluded by s 58A, namely, an entitlement to damages for the cost of future care.
The plaintiff contends that the effect of applying the 2017 Rules would be to destroy or abrogate an “accrued, acquired, established and/or exercisable right” she enjoys to damages in respect of the head of damages that is the subject of s 58A. In this way she seeks to invoke s 16(1)(c) of the AIA. Framing the submission that way does not add anything further to the question of whether the plaintiff had an accrued right that was affected by the application of the 2017 Rules to her. In my view, the submission fails in limine. As at 30 May 2017 when the 2017 Rules were promulgated the plaintiff had not accrued any right to an award of damages at common law for the costs of her future care. That head of damage necessarily rested on future events or transactions. The application of the eligibility criteria in the 2017 Rules to the plaintiff only had the potential to affect her claim to be compensated for costs yet to be incurred. The application of the 2017 Rules and s 58A to her claim for damages did not affect any right to damages for past losses which had been incurred. There was no accrued right that was affected and, in any event, there was an evident contrary intention.
The plaintiff also seeks to invoke the common law presumption in Maxwell v Murphy.[32] However, that does not advance the plaintiff’s submission. Section 16(1)(c) enshrines that common law presumption.[33] If s 16(1)(c) does not operate to preserve the plaintiff’s “right” to pursue a claim for damages under the head of the costs of future care neither can the common law presumption in Maxwell v Murphy.
[32] [1957] HCA 7, (1957) 96 CLR 261 at 267; Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40, (1959) 101 CLR 296 at 637-638.
[33] ADCO Constructions Pty Ltd v Goudappell [2014] HCA 18 at [27], (2014) 254 CLR 1 at 15; Diakou Nominees Pty Ltd v Gouger Street Pty Ltd [2017] SASC 72 at [35].
Section 16(1)(d) of the AIA does not take the matter any further. It refers in part to any “liability” that has been “imposed, created or incurred”. Where a plaintiff claims an accrued right at common law there necessarily must be a liability incurred by a defendant. On the other hand, unless a plaintiff has accrued a right, there will be no liability that has been imposed, created or incurred by the defendant. In this way the potential application of s 16(1)(c) and s 16(1)(d) merge.
Section 16(1)(e) refers in part to “legal proceedings or remedy in respect of any such right”. The plaintiff’s contention that the commencement of proceedings for damages is to be regarded as giving rise to a distinct existing right to have those proceedings determined in accordance with the substantive law as it then stood cannot be accepted. The reference to “legal proceedings or remedy” in s 16(1)(e) operates in relation to the right protected by s 16(1)(c), not independently of it[34] and s 16(1)(e) is restricted in its application to the preservation of the existence of the legal proceeding or remedy.[35]
[34] Esber v The Commonwealth [1992] HCA 20, (1992) 174 CLR 430 at 439.
[35] Rodway v The Queen [1990] HCA 19, (1990) 169 CLR 515 at 523.
In Esber v The Commonwealth an employee in receipt of weekly payments of compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) applied to redeem his weekly payments. His claim was rejected. He sought a review by the Commonwealth Administrative Appeals Tribunal (the Tribunal). Before the hearing of the review the 1971 Act was repealed by the Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act). Section 129(2) of the 1988 Act provided that proceedings instituted under the 1971 Act but not completed upon the repeal of that Act may be continued after repeal. The terms of the 1988 Act excluded a right to redemption in circumstances that otherwise would have applied to Mr Esber. The majority of the High Court held that s 129(2) was not a procedural provision that conferred a substantive right. The right which was adversely affected was identified as being the right to have his application to the Tribunal determined pursuant to the provisions of the 1971 Act.[36] That right was preserved pursuant to the equivalent of s 16(1)(c). It was an accrued right.
[36] Esber v The Commonwealth [1992] HCA 20, (1992) 174 CLR 430 at 440.
However, there is no question in this case that the plaintiff’s right to pursue a claim for damages at common law is preserved. Her common law action continues and she will be awarded damages. The real issue is the measure of her damages and whether from the time she became a participant in the LSS the Court was precluded from awarding any damages under the head of future care costs. If an entitlement to an award of damages under that head is not protected by s 16(1)(c) it will not be protected by reliance on s 16(1)(e).
In Director of Public Works v Ho Po Sang[37] the Privy Council had to consider the equivalent provision to s 16(1) under a Hong Kong Interpretation Ordinance. Their Lordships said:[38]
It is to be observed that under section 10 (e) a repeal is not to affect any investigation, legal proceeding or remedy “in respect of any such right.” The right referred to is the right mentioned in section 10 (c), i.e. a right acquired or accrued under a repealed enactment. This part of the provisions in paragraph (e) of section 10 does not and cannot operate unless there is a right as contemplated in paragraph (c). It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr J. that: “It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then,, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion.”
[37] [1961] AC 901.
[38] [1961] AC 901 at 922.
Further, the plaintiff calls in aid the common law presumption enunciated in the reasons of Kitto J in Continental Liqueurs Pty Ltd v GF Heublein & Bro Inc[39] that when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights.[40] That presumption is said to be reinforced by s 16(1)(e) of the AIA. However, that presumption does not support the construction for which the plaintiff contends. The statement of the common law rule must be understood in its context. Continental Liqueurs concerned the enactment of the Trade Marks Act 1955 (Cth) which repealed the Trade Marks Act 1905 (Cth). The 1905 Act had permitted an application to the High Court to remove a trademark by a person aggrieved by the registration. Before the repeal an application had been brought to remove a trade mark from the register. By the time of the repeal the matter had not been heard. The 1955 Act contained no provision dealing with applications for removal pending at its commencement. Kitto J held that by filing its application the applicant had acquired a right to have the Court decide whether it ought to exercise its jurisdiction under the 1905 Act. In this case there is no repeal of the right to bring the plaintiff’s common law action. The plaintiff’s right to pursue her action at common law is unaffected. Further, there was no suggestion in Continental Liqueurs that the presumption in respect of legal proceedings operates in the absence of a relevant underlying accrued right. Rather, in that case, the High Court expressly identified that right to be “the right to have an order made for the removal of the mark from the register”.[41] In any event, to the extent that the 2017 Rules and s 58A affect the plaintiff’s claim to damages for the costs of future care those provisions evince a clear intention to substitute new rights to ongoing care, treatment and support for any award under that head of damage.
[39] [1960] HCA 37, (1960) 103 CLR 422 at 427.
[40] [1960] HCA 37, (1960) 103 CLR 422 at 427.
[41] [1960] HCA 37, (1960) 103 CLR 422 at 427.
Accordingly, the presumptions the plaintiff seeks to invoke do not compel a contrary conclusion. A consideration of each of the presumptions relied upon by the plaintiff demonstrate that the commencement of the 2017 Rules did not affect any accrued right of the plaintiff and the prima facie preservation of that right pursuant to s 16 of the AIA and the common law had been displaced by a contrary intention to be found in the 2017 Rules, the LSS Act and s 58A of the CLA for the reasons set out above.
Finally, I reject the plaintiff’s submission that the general words in the LSS Act, the 2017 Rules and s 58A of the CLA that enliven the operation of s 16 of the AIA cannot evince a contrary intention to interfere with accrued or existing rights. That submission is contrary to the approach to statutory construction set out in Attorney-General (Qld) v Australian Industrial Relations Commission[42] as explained by Gleeson CJ in the passage I have set out earlier in these reasons[43].
[42] [2002] HCA 42 at [6]-[8], (2002) 213 CLR 485 at 492-493.
[43] At [33].
Just compensation?
The plaintiff seeks to invoke the presumption against the acquisition of property without just compensation. It did not do so on the pleadings. The defendants contend that she should not be permitted to do so given that they have been deprived of the opportunity to adduce evidence to rebut the relevance of the presumption. In any event, I am satisfied that recourse to the presumption does not avail the plaintiff. I have reached this conclusion on three bases. First, for the reasons set out above, the plaintiff does not have an accrued right to damages for the costs of her future treatment, care and support needs. Accordingly, the plaintiff did not have any proprietary interest that could have been acquired. Second, the plaintiff cannot demonstrate that any “right” has been accrued without just compensation. On the contrary, the asserted “acquisition” of the “right” to damages for future care occurred in the context of the statutory conferral of a right to the provision of lifetime treatment, support and care services. Again, for the reasons set out above, the plaintiff cannot demonstrate that the “acquisition” of her “right” to damages under this head exceeds the value of the corresponding statutory right to the provision of lifetime treatment, support and care. Third, again, for the reasons set out above, there is no evidentiary basis to establish that the State has acquired any benefit by making the 2017 Rules. The plaintiff’s contention that the operation of s 58A is “apt to confer a direct benefit or financial gain on the State” because the MAC is an instrumentality of the State fails on the basis that there is no evidence to establish, nor can it be said to be self-evident, that the provision of lifetime support under the LSS will result in a lesser cost to the State than a damages award of a lump sum for future care and support costs payable by the MAC. Further, the plaintiff’s submission confronts the difficulty that awards of damages are not paid out of the general revenue of the State. The MAC Fund is funded through MAC’s conduct as the compulsory third party insurer.[44] The cost of the insurance business is met by the compulsory third party insurance premiums paid by the registered owners of motor vehicles. The LSS is funded out of the LSS fund.[45] That is funded by the LSS levy, payable by owners of motor vehicles upon registration.[46] The amount of the levy is determined by the need to fund the LSS. The amount of the levy is set so as to cover the cost of necessary treatment, care and support for all LSS participants in any given year. While both the Authority and the MAC are instrumentalities of the Crown, and hold their property on behalf of the Crown, their funding derives from sums paid by motorists not from the general revenue of the State. Accordingly, relieving the MAC of an obligation to pay damages for future care and the corresponding imposition on the Authority to provide the future treatment, support and care needs of those catastrophically injured in motor vehicle accidents in South Australia, in circumstances where the cost in either case is borne by motorists rather than the State directly, is not appositely characterised as the acquisition of some financial or proprietary benefit by the State.
[44] Motor Accident Commission Act 1992 (SA) s 25.
[45] LSA Act s 42.
[46] LSA Act s 44.
Finally, it is important to recognise that what the plaintiff seeks to invoke is a presumption. It is a presumption of the common law. The weight that it carries varies depending on the context and nature of the alleged interference with rights. The reliance by the plaintiff on the presumption, even if it were applicable, would rise no higher than the other presumptions considered above. The presumption is rebutted.
Conclusion
The Authority was correct in applying the eligibility criteria in the 2017 Rules to the application to admit the plaintiff as a participant in the LSS. No jurisdictional error has occurred. The plaintiff’s action for judicial review must be dismissed. I would hear the parties as to costs.
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