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 writ of summons be set aside.
On 16 November 1999 the respondent also entered a conditional appearance to the writ of summons.
The respondent's chamber summons of 16 November 1999 came on for hearing before the learned Deputy Registrar on 14 June 2000. On 23 June 2000, the learned Deputy Registrar ordered, inter alia, that his orders made on 5 October 1999 be recalled and in lieu thereof there be an order that the appellant's application stand adjourned sine die and that the action be stayed until further order. The learned Deputy Registrar delivered very careful reasons for his decision to which I shall refer.
By notice of appeal dated 27 June 2000, the appellant now seeks orders that the orders of the learned Deputy Registrar made on 23 June 2000 be set aside and that the respondent's chamber summons dated 16 November 1999 be dismissed. By notice of cross appeal dated 30 June 2000, the respondent seeks orders inter alia, that the appellant's application for leave be dismissed and that the writ of summons and subsequent pleadings in this action be set aside.
The learned Deputy Registrar said towards the end of his reasons:
"… On 5 October 1999 I made an order granting the plaintiff leave to commence proceedings. By virtue of the interaction of the Interpretation Act and the Workers' Compensation and Rehabilitation Amendment Act 1999 the provisions under which I purported to grant leave to commence those proceedings are deemed to have ceased to exist at the time those orders were made. Additionally, on my analysis of the Workers' Compensation Act, as it presently stands, the orders are of no use to the plaintiff since he is not able to bring himself within the transitional provisions of the amended Act as a litigant who had been granted leave under the previous provisions before the assent day, that day being 5 October 1999. It therefore follows that whether the order remains or falls it is of no use to the plaintiff and in my view the plaintiff, if he is to pursue his claim, will need to rely on the Act as it has been recast and in particular s 93E and s 93F. In summary therefore it is my finding that the orders which I made: (a) have no legislative basis; (b) cannot operate to the benefit of the plaintiff; and as a consequence I am of the view those orders should be withdrawn."
The learned Deputy Registrar declined to set aside the writ and ordered that the action be stayed until further order, as I have explained.
In this appeal, therefore, the Court is required to determine afresh the application of the respondent by its chamber summons of 16 November 1999.
It seems to me that the first question which requires consideration in the determination of this appeal is whether the Court should set aside the writ of summons in this action if, without deciding at the moment, there was no legislative basis for the grant of leave on 5 October 1999. Counsel for the appellant submitted that this is an easy question to answer, since the decisions of this Court in Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150 and Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175. Those authorities make it clear that compliance with s 93E(3) of the Amended Act is no precondition to the institution of proceedings by writ of summons but only to any award of damages. I reach the same conclusion in the present case.
Counsel for the appellant repeated his submissions before the learned Deputy Registrar why leave should not be recalled in this case. He said that the discretion to recall an order should be exercised sparingly, which submission I accept. Secondly, he submitted that the leave to commence proceedings in this case was regularly given on 5 October 1999 and that order granting leave was valid when made. Thirdly, counsel submitted that given the valid grant of leave to the appellant on 5 October 1999 that right should not now be taken from him.
I do not accept the submissions of counsel for the appellant in this regard. In my opinion, the learned Deputy Registrar was correct in concluding that pursuant to s 21 of the Interpretation Act 1984, 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, so that there was no legislative basis for the grant of leave to the plaintiff at that time.
It follows in my opinion that both the appeal and cross-appeal should be dismissed and since I have heard the appeal and cross-appeal de novo, I shall hear counsel on any consequential orders to be made.