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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WADC 136
Decision Date: 14 JUNE 2001

CaseChat Overview and Summary

In the case of Gardner Merchant (Australia) Pty Ltd v Herft, the dispute arose from a workers' compensation claim brought by the plaintiff against the defendant. The matter was before the court to determine whether the continuation of the common law proceedings constituted an abuse of the court's process. The plaintiff had not had any agreement, election, or determination recorded in relation to his level of permanent disability, and the referral of this question to the conciliation and review directorate had been adjourned sine die.

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.

Orders