Gardner Merchant (Australia) Pty Ltd v Herft

[2001] WADC 136

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

1. 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.

2. 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.

3. Section 32(7) of the Amendment Act provides:

   "The amended provisions do not affect the awarding of damages in proceedings -

   (a)commenced before the assent day; or

   (b)for the commencement of which the District Court gave leave under the former provisions before the assent day,

   and the former provisions continue to apply in relation to those proceedings."

4. As Ipp J observed in Musgrove v Minister for Transport [2000] WASCA 232, the implication is that the "amended provisions" do affect the awarding of damages in proceedings commenced after the assent day and for the commencement of which this Court did not give leave under the former provisions before the assent day. In my opinion, this is such a case. It is, therefore, a case to which s 93E(3) and s 93E(4) of the Amendment Act apply. Those sub‑sections provide:

   "(3)   Damages can only be awarded if -

   (a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or

   (b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

   (4)     For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."

5. Counsel for the first defendant submitted that to allow the plaintiff to continue her common law action without first determining her degree of disability is an abuse of the process of the court in that the action may be one in which the plaintiff may never be awarded damages.  The evidence before the Court is that the plaintiff filed the referral of question of degree of disability (Form 22) with the Conciliation and Review Directorate before the termination date of 5 January 2000, alleging a disability of not less than 30 per cent.  It appears that thereafter the preliminary review was adjourned sine die on 18 May 2000.  It follows that to date, no agreement, election or determination has been recorded in relation to the plaintiff's level of permanent disability.

6. Counsel for the first defendant submitted that since the plaintiff has not proceeded to agree or to have determined her degree of disability, and if less than 30 per cent, elect to retain the right to seek damages at common law, it is an abuse of the process of the Court to pursue the present action. Counsel submitted that it is an abuse of process because it seeks to circumvent the procedure by which s 93E(5) of the Amendment Act requires the plaintiff to make her election whether to retain the right to seek damages at common law within six months after the day on which weekly payments commenced, by adjourning the determination of the degree of her disability. It is further said that such a course is an abuse of process because the plaintiff should not be permitted to pursue the action in circumstances where she may never recover an award of damages at common law, contrary to case management principles.

7. Counsel for the first defendant referred to the judgment of McKechnie J in Re Monger; ex parte Woodford [1999] WASC 273. That was a case where the worker had made an election to retain the right to seek damages at common law but had not reached agreement or obtained a determination about the degree of his disability. The court held the scheme of the amendment was such as to require a worker's degree of disability to be agreed or determined prior to the worker electing to forego worker's compensation benefits and pursue instead a claim at common law.

8. In the present case, the plaintiff has made no election.  It was common ground between counsel that it remains open to the parties to bring the matter on before the Directorate again.  Counsel for the plaintiff submitted that the plaintiff is nowhere near entering the action for trial and that in all the circumstances the Court should not conclude its processes are being abused at the moment.  In my opinion, there is no evidence that the plaintiff has proceeded other than in accordance with the Act or that the pursuit of her action at the moment is an abuse of the process of the Court.  I am therefore of the opinion that the learned Deputy Registrar was right to refuse the application for a stay.  For these reasons, in my opinion, the appeal should be dismissed and the order of the learned Deputy Registrar confirmed.