JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GARDNER MERCHANT (AUSTRALIA) PTY LTD -v- HERFT [2001] WADC 136
CORAM: COMMISSIONER GREAVES
HEARD: 18 MAY 2001
DELIVERED : 14 JUNE 2001
FILE NO/S: CIV 3936 of 1999
BETWEEN: GARDNER MERCHANT (AUSTRALIA) PTY LTD
Appellant (First Defendant)
AND
IVONE HERFT
Respondent (Plaintiff)
Catchwords:
Practice - Workers' compensation - Appeal - Referral of question of degree of disability to conciliation and review directorate adjourned sine die - No agreement, election or determination recorded in relation to plaintiff's level of permanent disability - Whether continuation of common law proceedings abuse of process of court - No evidence plaintiff proceeded other than in accordance with legislative provisions affecting the award of damages in proceedings commenced on or after 5 October 1999 - Abuse of process not established - Appeal dismissed
Legislation:
Workers' Compensation & Rehabilitation Act 1981, s 93D(4), s 93E
Workers' Compensation & Rehabilitation Amendment Act 1999, s 32(5), s 32(7)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (First Defendant) : Mr P E Jarman
Respondent (Plaintiff) : Mr D M Bruns
Solicitors:
Appellant (First Defendant) : Jackson McDonald
Respondent (Plaintiff) : Separovic & Associates
Case(s) referred to in judgment(s):
Gould v David Brown Gear Industries Ltd [2000] WADC 232
Musgrove v Minister for Transport [2000] WASCA 232
Re Monger; ex parte Woodford [1999] WASC 273
Case(s) also cited:
Nil
COMMISSIONER GREAVES: This is an appeal from a decision of the learned Deputy Registrar of 6 February this year. The learned Deputy Registrar refused the first defendant's application for an order that the plaintiff's action against the first defendant be stayed until such time as she complies with the provisions of s 93E of the Workers' Compensation and Rehabilitation Act 1981 as amended by the Workers' Compensation and Rehabilitation Amendment Act 1999.
A threshold question arose before me whether these are proceedings to which the provisions of the Workers' Compensation and Rehabilitation Amendment Act 1999, and in particular s 32(5) of that Act, apply since it appears that the plaintiff was granted leave to issue proceedings against the first defendant pursuant to s 93D(4) of the Principal Act before its amendment. It appears leave was granted on the morning of 5 October 1999. As I observed in Gould v David Brown Gear Industries Ltd [2000] WADC 232, at approximately 5.00 pm on 5 October 1999, royal assent was given to the Workers' Compensation and Rehabilitation Amendment Act 1999. At par 11 of the reasons for decision in that case, the court concluded that the Workers' Compensation and Rehabilitation Amendment Act 1999, and in particular s 32(5) of that Act, came into operation at the beginning of 5 October 1999, pursuant to s 21 of the Interpretation Act 1984, so that there was no legislative basis for the grant of leave to the plaintiff at that time.
Section 32(7) of the Amendment Act provides:
"The amended provisions do not affect the awarding of…
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- Case
- [2001] WADC 136
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether the plaintiff's continuation of the common law proceedings, despite the legislative provisions affecting the award of damages in workers' compensation cases commenced on or after 5 October 1999, constituted an abuse of process. The court needed to assess whether the plaintiff had acted contrary to the legislative scheme and if his actions amounted to an abuse of the court's process.
The court found that there was no evidence that the plaintiff had proceeded other than in accordance with the legislative provisions. Given this, the court held that the plaintiff's actions did not constitute an abuse of process. The court dismissed the defendant's appeal, affirming that the plaintiff's conduct was compliant with the relevant legislative framework.
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Evidence
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