Gould v David Brown Gear Industries Ltd - [2000] WADC 232

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GOULD -v- DAVID BROWN GEAR INDUSTRIES LTD [2000] WADC 232

CORAM: COMMISSIONER GREAVES

HEARD: 24 AUGUST 2000

DELIVERED : 10 OCTOBER 2000

FILE NO/S: CIV 3938 of 1999

BETWEEN: PETER BRETT GOULD
Appellant
AND
DAVID BROWN GEAR INDUSTRIES LTD
Respondent

Catchwords:

Practice - Workers compensation - Appeal and cross appeal - Writ issued pursuant to leave of Court - Order of Deputy Registrar recalling leave on application of defendant - Leave of Court not necessary at time writ issued - Order of Deputy Registrar recalling writ confirmed - Appeal dismissed - Application to set aside writ refused and cross appeal dismissed - Workers' Compensation and Rehabilitation Act 1981 (as amended) s 93D, s 93E(3), Workers' Compensation and Rehabilitation Amendment Act 1999, s 32(5)

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (as amended)

Workers' Compensation and Rehabilitation Amendment Act 1999
Interpretation Act 1984

Result:

Appeal and cross-appeal dismissed

Representation:

Counsel:

Appellant: Mr D M Bruns
Respondent: Dr H Schoombee

Solicitors:

Appellant: Separovic & Associates
Respondent: Downings Legal

Case(s) referred to in judgment(s):

Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175
Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150

Case(s) also cited:

Nil

GREAVES DCJ: This is an appeal from the decision of the learned Deputy Registrar of 23 June this year. It is common ground that the appeal is to be heard and determined de novo. By originating summons dated 2 June 1999 the appellant (plaintiff) sought leave to commence proceedings against the respondent (defendant) for damages in respect of an injury suffered by the appellant on 11 June and 16 June 1997, pursuant to s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 before the repeal of that section. It appears from Exhibit A, the affidavit of Yerko Damir Radich of 1 February 2000, filed on behalf of the appellant that at approximately 10.00 am on 5 October 1999, the learned Deputy Registrar made an order that leave be granted to the appellant to commence proceedings against the respondent for damages in respect of an injury suffered by the appellant on 11 June and 16 June 1997.
At approximately 5.00 pm on 5 October 1999 it appears that Royal assent was given to the Workers' Compensation and Rehabilitation Amendment Act 1999 (No 34 of 1999). Section 32(5) of the Amendment Act repealed s 93D, s 93E and s 93F of the principal Act and substituted alternative provisions. On 13 October 1999, the plaintiff issued his writ out of this Court pursuant to leave granted on 5 October 1999. So far as it is material, it appears that at the request of the respondent's solicitors, the Order of 5 October 1999 was not sealed pending the respondent's application by chamber summons dated 16 November 1999 for orders inter alia that leave to issue the writ be recalled, that the originating summons be dismissed or adjourned sine die, and that the…

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: [2000] WADC 232
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Peter Brett Gould appealed against the decision of the Deputy Registrar, seeking to set aside an order that recalled leave to commence proceedings against David Brown Gear Industries Ltd. The dispute involved an injury sustained by Gould on 11 and 16 June 1997, and the application for leave to sue was made under s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981, before its repeal. The writ was issued after the Workers' Compensation and Rehabilitation Amendment Act 1999 was assented to, which rendered the leave order legally ineffective. The court needed to determine whether the writ should be set aside due to the absence of a legislative basis for the grant of leave and whether the discretion to recall an order should be exercised sparingly.

The court found that the Workers' Compensation and Rehabilitation Amendment Act 1999 came into effect at the start of 5 October 1999, invalidating the leave order made on that date. The court held that the writ should not be set aside because compliance with s 93E(3) of the Amended Act is not a prerequisite for instituting proceedings by writ of summons, but only for any award of damages. Additionally, the court agreed with the submission that the discretion to recall an order should be exercised sparingly, but concluded that the Deputy Registrar was correct in recalling the leave order as there was no legislative basis for it at the time it was granted. Both the appeal and cross-appeal were dismissed.

Orders